Hornback's Estate, In re
| Decision Date | 14 July 1970 |
| Docket Number | No. 42310,42310 |
| Citation | 475 P.2d 184 |
| Parties | In the Matter of the ESTATE of Ivan HORNBACK, Deceased. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
A common law marriage is contractual and must be founded upon a mutual consent between the parties on a present assumption of an existing relationship. The mere contemplation of marriage is insufficient to establish a common law marriage.
Appeal from the District Court of Craig County; Leslie W. Webb, Judge.
Plaintiff contested discharge of administrator and entry of final decree in county court alleging she was common law wife of deceased. After entry of decree plaintiff filed appeal in district court where trial was held de novo. From an adverse decision in district court this appeal was filed. Affirmed.
Josh J. Evans, Beaver, for plaintiff in error.
Pitcher, Logan & Lowry, Vinita, for defendant in error.
Plaintiff in error contested the entering of a final decree, approving final account, determining heirs, final distribution to heirs and the discharge of administrator in the county court in the Estate of Ivan Hornback, deceased. After the decree was entered in the county court plaintiff appealed to the district court where trial was held de novo. Plaintiff claims to be the common law wife of the deceased. She asserts error of the trial court in making no provision for her in the final decree. Following an adverse decision of the district court plaintiff filed her appeal in this court. The decision of the district court is affirmed.
The assignments of error by plaintiff are: decision is contrary to the evidence and law in that where there is direct evidence of a common law marriage it is unnecessary to prove reputation of marital status; it is error to admit evidence of reputation of marital status where there is direct evidence; admissions of marriage should be given great weight and denials at isolated times given little weight; and irregularities in the proceedings and abuse of discretion of trial judge prevented plaintiff from having her day in court.
It was stipulated at the trial that the deceased, Ivan Hornback, and the plaintiff, Dorothy Dunn were married September 20, 1957; divorced June 13, 1963; filed a joint application to vacate divorce decree December 13, 1963; and Ivan Hornback died February 13, 1965. An application to vacate the divorce decree was filed but an order never entered.
Plaintiff testified that she and deceased had been married and lived together on a farm near Vinita, Oklahoma. That after the divorce she moved to Baxter Springs, Kansas where she worked during the week and visited or stayed with the deceased on the week ends.
A Mr. P testified for plaintiff that he had known the deceased for some time and that deceased had informed him he had filed an application to have the divorce set aside, paid $25.00 to have it done and that it had been set aside. Deceased had told him shortly before his death that his 'cook' was coming back, and that he referred to his wife as his cook.
The sister of the plaintiff testified that the deceased spoke of the plaintiff as his wife. She indicated plaintiff worked in Baxter Springs, Kansas during the week and that deceased would take her to Oklahoma to live with him on the week ends. She said that plaintiff would always go by the name of Hornback while in Kansas.
Mrs. A testified she lived about a quarter of a mile from the deceased and that she often received phone calls for deceased and for the plaintiff. Upon cross examination she stated that she presumed deceased was single and nearly everyone in the community thought he was single.
Plaintiff testified she was the wife of the deceased. They had resumed relations after an application was filed to set aside the divorce. She testified she would work in Kansas during the week and come to Oklahoma to live with the deceased on the week ends. She stated she and deceased would in turn visit in their home. On cross examination plaintiff admitted she was uncertain whether the divorce decree was vacated. She said she used the name of Dorothy Dunn most of the time instead of Hornback because she was uncertain as to whether the decree had been vacated. She admitted signing a number of letters using the name Dorothy Dunn, many of which refuted her testimony, that she and deceased were husband and wife. One of these letters was written two months before his death Asking when they were going to be married.
Defendant offered numerous witnesses who testified as to the reputation of deceased in the community being that of a single man. The Tax Assessor stated deceased told him he was single when he filed his homestead exemption and personal property application.
A Mrs. LF testified that she had not known the deceased and plaintiff prior to the day of deceased's death. She said on that day they came to her door asking for a jack as his car had become stuck. The witness testified:
'A. Well, he got stuck in the mud and asked if he could borrow a jack, and he went and got the jack, and he was putting the jack on backwards, that's why * * *
'Q. Just let me interrupt, did you have a conversation with Ivan before he had this attack?
'A. Yes, she was telling me.
'Q. Yes, just answer the question.
'A. Yes.
'Q. Tell us what conversation was had?
'A. She was talking to me, and he turned around and said 'What do you think of a man of my age getting married?'
'Q. What was she saying?
'A. She was telling me about them going to get married in two or three days.
'Q. And that was before he had his attack?
'A. Yes.
'Q. All right, after Ivan had the attack and fell over, did you thereafter--what took place then?
'A. We went to call an ambulance.
'Q. Did you have a conversation with Dorothy then?
'A. Yes, I asked her what his name was, because I did not know, and she said it was Ivan Hornback.
'Q. Did you ask her anything else?
'A. Yes, and I said, 'What is your name?' and she said, 'Dorothy Dunn.'
'Q....
To continue reading
Request your trial
-
United States v. Eaton
...assumption of an existing relationship, not upon what the parties intended or have agreed to do at a future time." In re Est. of Hornback, 475 P.2d 184 (Okl.1970). "The burden is upon the person relying upon a common law marriage to establish the same. The judgment of a trial court against ......
-
State ex rel. Bailey v. Powers
... ... Greenback v. State, 169 Okl. 616, 36 P.2d 882 (1934) ... 4 In Re Hornbach's Estate ... ...
-
Price v. Price
...the founding of a common-law marriage is a mutual agreement between the parties to marry, to become husband and wife. In re Estate of Hornback, Okl., 475 P.2d 184 (1970); Gilmore v. Harvel, 208 Okl. 664, 258 P.2d 632 (1953). Her further assertion, however that mere cohabitation of an adult ......
-
United Benefit Life Ins. Co. v. Norman Lumber Co.
...in cases of equitable cognizance is whether the holding of the trial court is against the clear weight of the evidence. In re Hornback's Estate, Okl., 475 P.2d 184 (1970). The principal testimony of behalf of United came from Mr. J, builder-contractor of the homes in controversy. He stated ......