Fisher's Estate, In re

• Decision Date: 05 May 1970
• Docket Number: No. 54008,54008
• Citation: Fisher's Estate, In re, 176 N.W.2d 801 (Iowa 1970)
• Parties: In the Matter of the ESTATE of Wilson Paul FISHER, Jr., Deceased. Carroll Sue FISHER, Administrator, Appellant, v. Cary Laurence FISHER and Christian Louis Fisher, by Mother and Next Friend, Cheryl Joy Pepin, Appellees.
• Court: Iowa Supreme Court

Page 801

176 N.W.2d 801

In the Matter of the ESTATE of Wilson Paul FISHER, Jr., DeceasedCarroll Sue FISHER, Administrator, Appellant, v.Cary Laurence FISHER and Christian Louis Fisher, by Mother and Next Friend, Cheryl Joy Pepin, Appellees.

No. 54008.

Supreme Court of Iowa.

May 5, 1970.

Henry J. Haugan, Des Moines, for appellant.

Theodore T. Duffield and Roy M. Irish, Des Moines, for appellees.

REES, Justice.

Decedent, Wilson Paul Fisher, Jr., died intestate on November 21, 1968, a resident of Polk county.On the petition of decedent's mother, appellant who here claims to be the common-law wife of decedent was appointed administrator.The divorced former wife of decedent, acting as the mother and next-friend of two minor children of decedent, filed application to remove administrator, and trial court ordered removal and appointed decedent's former wife, Cheryl Joy Pepin, as administrator, from which order this appeal is taken.We are unable to agree with the trial court, and reverse and remand for the entry of orders in keeping herewith.

The appellees, Cary Laurence Fisher and Christian Louis Fisher, are the issue of the marriage of Wilson Paul Fisher, Jr., and Cheryl Joy Fisher, one of said children being the issue of the marriage by natural birth and the other by adoption.The parties were married in June, 1965, and the marriage relationship terminated by divorce in August, 1967.The two children, Cary Laurence Fisher and Christian Louis Fisher, are identified in the record as appellees, and are represented by their mother and next-friend, Cheryl Joy Fisher Pepin.The custody of the children by the terms of the decree of divorce was vested in the mother.About October of 1967 the decedent became acquainted with the appellant, Carroll Sue Vanderpool Perdue, who was then married to one Platt Perdue, who was serving in Germany as a member of the Armed Forces.Platt and Carroll Perdue were the parents of one child, born in January of 1967.In October, 1967, the decedent and the appellant started dating each other, and in June, 1968, they took up residence together in a house at 1919 Capitol in Des Moines.Earlier in 1968the appellant had filed a petition for divorce in the district court of Dallas county.Prior to the entry of a decree of divorce, a child which the record establishes was the issue of the relationship between the appellant and the decedent, Wilson Paul Fisher, Jr., was born on August 27, 1968.A decree of divorce was entered September 9, 1968.The child who is referred to above as the issue of the relationship between the decedent and the appellant was delivered at Broadlawns Hospital in Des Moines, and just prior to its birth the appellant was taken to the hospital by the decedent.When she entered the hospital the appellant identified herself as Carroll Sue Fisher, and at the time of the birth of the child the birth certificate identified the child as Wilson Paul Fisher, III.The record discloses that the administrative officer of the hospital was subsequently advised that the mother of the child was married to Platt Perdue, and caused to be filed a substitute or amended birth certificate identifying the child as Wilson Paul Perdue.The birth certificate first filed identified Wilson Paul Fisher, Jr., as the father of the child, and the amended or substituted certificate of birth indicated that the father of the child was Platt Perdue.

Following the entry of the decree of divorce on September 9, 1968, the appellant and the decedent continued to live together, removing from the residence at 1919 East Capitol, in late October, to a rented house in or near Granger, Iowa.During all the time the parties lived together and until early September, 1968, the appellant received an allotment out of the service pay of her husband, Platt Perdue.These allotment payments terminated in September of 1968.At the time the appellant filed her petition for divorce, and during its pendency, she at no time advised her husband of the fact of her pregnancy, nor did she advise the court at the time the divorce was proved up of the fact that she had been delivered of a child not the issue of her marriage to her husband.

On September 16, 1968, the appellant purchased a policy of life insurance on her own life, the agent for the insurance company having been summoned to the home at 1919 East Capitol by the decedent.The application for insurance showed that Wilson P. Fisher, Jr., was her husband, and the record discloses that during the time the information was being furnished the agent by the appellant the decedent Fisher was personally present, and that the initial monthly payment was paid to the agent by the decedent by his personal check.

On October 26, 1968, the appellant and the decedent opened a joint checking account in Brenton State Bank, Granger, Iowa, under the names 'W. P. or Carroll Fisher, Jr.', and the authorized signatures on the bank record card indicated that Wilson Paul Fisher, Jr., or Carroll Fisher were authorized to check on the account.

The record discloses that at the time the agent for the life insurance company was at the Fisher home in Des Moines completing the application for life insurance on the life of the appellant, one Betty Jean Hopkins, a foster sister of the decedent, and her husband was present.It appears that Mr. & Mrs. Hopkins owned a set of rings, a wedding band and an engagement type ring, which that night they sold to the decedent who in their presence gave the rings to the appellant and she put the rings on her hand and continued to wear them throughout the relationship of the decedent and appellant.

The decedent came to his death as the consequence of a motor vehicle accident on November 21, 1968.On November 25, 1968, a petition for administration upon his estate on the part of Alice Viola Fisher, the decedent's mother, was filed in the office of the clerk of Polk county, in which petition the appellant is identified as the wife of the decedent, and the child, Wilson Paul Fisher, is identified as a child of the decedent.On November 25, 1968, Carroll Sue Fisher was appointed administrator of the decedent's estate.

Four days later the appellee as the next-friend and mother of Cary Laurence Fisher and Christian Louis Fisher, filed her application for removal of administrator, alleging that the decedent's mother, the petitioner for administration, is not an heir, and that Carroll Sue Fisher is not the surviving spouse of the decedent, and that the decedent left no surviving spouse, alleging also that the sons, Cary Laurence Fisher and Christian Louis Fisher are the next-of-kin of the deceased, and praying that Carroll Sue Fisher be removed as administrator.A petition for administration upon the estate of the decedent identifying the two children, the issue of his first marriage as his only heirs at law and praying for the appointment of Cheryl Joy Pepin as administrator was filed on December 10, 1968.Following answer on the part of Carroll Sue Fisher and reply, trial was had to the court and the court found no common-law marriage agreement existed between Carroll Sue Perdue and the decedent, Wilson Paul Fisher, Jr., specifically finding the evidence to establish the claimed common-law marriage was not clear, consistent or convincing.An order was subsequently entered removing Carroll Sue Perdue as administrator of the estate of the decedent and appointing Cheryl Joy Fisher, formerly known as Cheryl Joy Pepin, as administrator thereof.From such finding and orders this appeal is taken.

I.The appellee contends the action was tried in the court below as an ordinary action at law and is not reviewable de novo.We are unable to agree.The record discloses the trial was conducted by the trial court as an equitable proceedings; answers were taken to questions propounded to the several witnesses subject to objections made.In a few instances, the court ruled upon objections to questions propounded to witnesses.In support of her propositionthe appellee cites In re Estate of Wulf, Deceased, 242 Iowa 1012, 48 N.W.2d 890, 33 A.L.R.2d 698;In re Pierce's Estate, 245 Iowa 22, 60 N.W.2d 894;andIn re Allen's Estate, 251 Iowa 177, 100 N.W.2d 10.All of these cases antedated the enactment of the present Probate Code, specificallysection 633.33 Code, 1966, which provides,

'Action to set aside or contest wills, for the involuntary appointment of guardians and conservators, and for the establishment of contested claims shall be triable in probate as law actions, and all other matters triable in probate shall be tried by the probate court as a proceeding in equity.'

We conclude, therefore, that our review of the record in this case is de novo.

II.Concededly, the appellant, Carroll Sue Fisher, whose marriage to Platt Perdue, was terminated by a decree of divorce on September 9, 1968, could not have prior to that date entered into a valid marriage relationship with the decedent.We therefore need concern ourselves in the main with the record insofar as it establishes or fails to establish a common-law marriage relationship commenced on or subsequent to the date of her decree of divorce.We may of course consider the entire record of the relationship of the parties for the purpose of determining the ultimate question which is here before us.Section 595.19, Code, 1966, provides,

'Marriages between the following persons shall be void: * * * 4.Between persons either of whom has a husband or wife living, but, if the parties live and cohabit together after the death or divorce of the former husband or wife, such marriage shall be valid.'

Iowa has recognized common-law marriage for well over a century.Blanchard v. Lambert, 43 Iowa 228, 22 Am. Reports 245;In re Estate of Stopps, 244 Iowa 931, 57 N.W.2d 221;Gammelgaard v. Gammelgaard, 247 Iowa 979, 77 N.W.2d 479;In re Estate of Long, 251 Iowa 1042, and cases cited, p. 1046, 102 N.W.2d 76.'Where recognized,...