Estate of Hendrickson, Matter of

• Decision Date: 18 January 1991
• Docket Number: No. 64213,64213
• Citation: 805 P.2d 20,248 Kan. 72
• Parties: In the Matter of the ESTATE OF Delbert P. HENDRICKSON, Deceased.
• Court: Kansas Supreme Court

Page 20

805 P.2d 20

248 Kan. 72

In the Matter of the ESTATE OF Delbert P. HENDRICKSON, Deceased.

No. 64213.

Supreme Court of Kansas.

Jan. 18, 1991.

Syllabus by the Court

1. The three elements of common-law marriage are: (1) capacity of the parties to marry; (2) present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public.

2. Capacity to marry relates to whether or not a legal impediment exists to entering into a marriage contract. Included within the term are such diverse matters as mental or physical capacity, the absence of a spouse, whether or not the marriage would be incestuous, and the party being of sufficient age to marry.

3. The test as to whether there is mental capacity to contract a valid marriage is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates.

4. The burden of proving a common-law marriage rests upon the party asserting it. However, there is a general presumption that a person who has contracted a marriage was mentally capable of contracting it. A party alleging the lack of mental capacity to marry thus has the burden of overcoming that presumption.

Steven W. Rogers of Rogers Law Office, Fredonia, argued the cause and was on the brief for appellant Ruby M. Hendrickson.

John J. Gillett, Fredonia, argued the cause and was on the brief for appellees Gene R. Hendrickson and Judy L. Martin.

McFARLAND, Justice:

Ruby M. Hendrickson filed proceedings to probate the estate of her deceased common-law husband, Delbert P. Hendrickson. Decedent's children, Gene R. Hendrickson and Judy L. Martin, contested Ruby's status as the widow of the decedent. The magistrate court held in favor of Ruby. The district court, on appeal, held Ruby had failed to carry her burden of proof to establish the existence of the common-law marriage. The Court of Appeals affirmed the district court in an unpublished opinion filed May 25, 1990. 792 P.2d 1077. The matter is before us on petition for review.

The three elements of common-law marriage are: (1) capacity of the parties to marry; (2) present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. Eaton v. Johnston, 235 Kan. 323, Syl. p 1, 681 P.2d 606 (1984). Capacity to marry relates to whether or not a legal impediment exists to entering into a marriage contract. Accordingly, the term "capacity to marry" involves such diverse matters as mental or physical capacity, the absence of a spouse, whether a marriage would be incestuous, and the party being of sufficient age to marry. See generally 52 Am.Jur.2d, Marriage § 14 et seq. In the case before us, the only issue is whether or not the decedent had sufficient mental capacity to enter into a common-law marriage.

The facts may be summarized as follows. Delbert Hendrickson was born in 1915. In 1939 he married his first wife, Irene. In 1944, he was discharged from the United States Army with a 50% disability rating. The reason for the resultant disability pension was either a "nervous breakdown" or "back problems." The son, Gene, testified he believed the former version; Ruby testified Delbert told her the latter version. No official records were introduced into evidence. Three children were born to the marriage, Gene, Judy, and Rodney.

Delbert was a poor provider, and the family had many financial problems. Delbert had various hospitalizations. Gene testified he understood the cause was mental illness. In 1968, Delbert's disability pension was increased to reflect 100% disability. Irene was, during her married life, the stabilizing spouse and manager of the family. She had to perform this role quietly and indirectly, or Delbert would become angry. In December 1987, Irene died.

About 1981, the younger son, Rodney, was killed in a truck accident. His parents received about $100,000 from litigation over the loss of Rodney. During the period of time at issue herein (1988), about $50,000 and a small farm near Neodesha remained. The two remaining children were married adults and lived some distance from Delbert, who stayed on the farm. Delbert would have problems from time to time managing his finances and Gene would straighten out the problems.

In March of 1988, Ruby and Delbert met through Ruby's son. This son had an interest in horses and would go to Delbert's farm to ride. Ruby started accompanying the son to the farm and began helping Delbert. Ruby was 55 years old and Delbert was 73. Commencing in July 1988, Ruby would spend some nights on the farm. There was considerable testimony that the two discussed marriage, and that Delbert wanted to marry Ruby.

During this summer, heart disease became a problem for Delbert and this required treatment at the Veterans Administration (V.A.) hospital in Wichita. He was hospitalized various times during that summer and fall. Ruby was involved in making the arrangements and providing the transportation. In November 1988, Delbert returned to the Wichita V.A. hospital. His condition was poor and he was transferred to the V.A. hospital in Oklahoma City where more specialized treatment was available.

A staff member of the V.A. hospital telephoned Ruby, in late November 1988, requesting that she come and see Delbert. She was advised Delbert was going to die. Ruby had no private transportation and arrived by bus late at night on November 23, 1988. The V.A. hospital had quarters ready for her at its "Hospitality House." The following morning, Thanksgiving, Ruby went to the hospital. Delbert's physician and a nurse accompanied her to Delbert's room. Ruby testified that, in the presence of these staff members, Delbert asked her to marry him yet that day and she agreed. Delbert looked quite ill and was wearing an oxygen mask. Shortly thereafter, the hospital chaplain arrived and asked if the wedding was on. Hospital staff advised the media and at 1:00 p.m. that day the chaplain performed the ceremony--designated as a common-law marriage at the time as there was no marriage license. Local newspapers and a television station granted coverage due to the human interest angle of the story. Introduced into evidence was a copy of the brief film clip used by the television station on its evening news show. The couple is portrayed sitting on the edge of Delbert's bed. Delbert is smiling and holding Ruby's hand. He then removes his oxygen mask and kisses Ruby. Later that day, Ruby telephoned Delbert's children to tell them of the marriage (Delbert did not have a telephone in his room).

Ruby moved into Delbert's hospital room. On December 3, 1988, Delbert was discharged and the V.A. hospital staff took the couple back to Ruby's home in Fredonia. Delbert's son, Gene, and his son-in-law, Lornell Martin, testified that Delbert telephoned them shortly after his arrival in Fredonia. He told them things happened so fast he did not realize what was going on. This testimony is rather unclear as to whether Delbert was referring to the wedding or the theft of money from Ruby in a purse snatch at the hospital.

Delbert's condition deteriorated and he was rehospitalized in Wichita where he died on December 12, 1988. He had resided in Fredonia approximately one week.

Preliminarily, some comment needs to be made as to which state's law applies. The marriage occurred in Oklahoma. The validity of the marriage should be determined under that state's law. Oklahoma recognizes common-law marriage. See In re Sanders Estate, 67 Okla. 3, 168 Pac. 197 (1917). The parties have presented no research to us on the requirements for a valid common-law marriage in Oklahoma. Apparently, they are satisfied that Kansas and Oklahoma have identical applicable law in this area. Our limited research has not disclosed any differences in the subject area which are pertinent herein. The parties argue Kansas law in support of their respective positions. We will, under these circumstances, decide the matter as though the marriage had occurred in Kansas.

What is meant by the term mental capacity to marry? In Baughman v. Baughman, 32 Kan. 538, Syl. p 5, 4 Pac. 1003 (1884), this court held:

"In order to avoid a contract of marriage on the ground of mental unsoundness, the party alleged to be insane or non compos mentis must be incapable of understanding the nature of the contract itself. Mere imbecility or weakness of mind, caused by disease or otherwise, will not be, when unaccompanied by circumstances showing it has been taken advantage of, a sufficient ground for avoiding such a contract. If the powers of the mind of the person alleged to be non compos mentis have been so far affected by disease or the decay of his faculties as to render him incapable of knowing the effect of the act he is about to perform, and of intelligently consenting to the marriage ceremony, then there is an incapacity on his part to contract. On the other hand, even if his understanding be weak, still, if the capacity of his mind remains to see things at the time in their true relations, and to form correct conclusions, the contract of marriage will be valid, in the absence of...