In re Sanders' Estate

• Decision Date: 09 October 1917
• Docket Number: 6768.
• Citation: 168 P. 197,67 Okla. 3,1917 OK 468
• Parties: In re SANDERS' ESTATE. v. SANDERS et al. SANDERS
• Court: Oklahoma Supreme Court

168 P. 197

67 Okla. 3, 1917 OK 468

In re SANDERS' ESTATE.

SANDERS v. SANDERS et al.

No. 6768.

Supreme Court of Oklahoma

October 9, 1917

Syllabus by the Court.

The law is astute to preserve the sanctity of the marriage relation the legitimacy of children, and the stability of descent and distribution, and therefore presumes innocence and virtue in the absence of proof to the contrary.

It is the duty of courts to guard with jealous care the interests of minors in actions involving their rights. No presumption can be permitted against an infant, but, on the contrary every presumption must be indulged in his favor, and a guardian ad litem or other person representing such minor must see to it that every question available is urged on behalf of said minor, and in case of a failure to discharge this duty, it becomes the imperative duty of the court to see that the infant's rights are protected.

A common-law marriage may exist in this state, and when parties capable of entering into the marital relation agree to be and become husband and wife, and in pursuance of such agreement enter into and thereafter maintain the marriage relation a common-law marriage exists.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Common-Law Marriage.]

Marriage in the legal sense is a civil contract, and statutes regulating the form of entering into the marriage relation are usually directory, and where such statutes do not expressly prohibit or forbid other forms of marriage, a common-law marriage, consummated in accordance with the rules of the common law, is valid.

Evidence was offered to show that the parents of plaintiff had entered into the marriage relation according to the rules of the common law. This evidence was excluded. Held, error.

Error from District Court, Hughes County; John Caruthers, Judge.

Petition by Nathan Sanders, minor, by John Cordell, guardian and next friend, in the matter of the estate of James B. Sanders deceased, praying distribution of the estate, to himself as the only heir at law, opposed by Elizabeth Sanders and others. From a judgment of the district court affirming a judgment against petitioner, he brings error. Reversed and remanded for new trial.

B. B. Blakeney, of Tulsa, and Hunter Johnson, of Oklahoma City, for plaintiff in error.

Geo. L. Mann, of Sapulpa, and Harry H. Diamond, of Holdenville, for defendants in error.

HARDY J.

Plaintiff in error filed his petition in the county court of Hughes county, in administration proceedings pending upon the estate of James B. Sanders, deceased, praying distribution of said estate to himself as the only heir at law of said James B. Sanders, deceased. From an adverse decision an appeal was prosecuted to the district court, where a like judgment was rendered and the case brought here.

Evidence was offered at the trial to show the existence of a common-law marriage between Sanders and the mother of plaintiff in error, but was excluded. In the petition seeking distribution to plaintiff it was alleged that he was the son of said Sanders and Peggy Harper, who were never married, but all objections that the evidence offered was outside the issues are waived, and the question whether said evidence was material submitted to the court for an opinion thereon. This concession of counsel gives recognition to the policy of the law where the rights of minors are involved and where the question of legitimacy is concerned. It was said in Coachman v. Sims et al., 36 Okl. 536, 129 P. 845, that:

"The law is astute to preserve the sanctity of the marriage relation, legitimacy of children, and stability of descent and distribution and therefore presumes innocence and virtue in the absence of proof."

The same policy was again expressed in the first paragraph of the syllabus in Bolling et al. v. Campbell, 36 Okl. 671, 128 P. 1091, where it was said:

"It is the duty of the courts to guard with jealous care the rights of minors in actions brought against them. No presumption against an infant can be permitted, but, on the contrary every presumption is indulged in his favor, and a guardian ad litem must see to it that every question available in the defense of his ward is urged and acted upon by the court; and in case of the failure of the guardian ad litem to properly discharge his duty in that or any other respect,

it becomes the imperative duty of the court to protect the infant's rights."

There is no reason why a different rule should apply here. Plaintiff in error was a minor about three years old, prosecuting his claim by a guardian and next friend, and his right to a distribution of the estate claimed might be established by proof that a common-law marriage existed between his parents; and, when evidence was offered tending to show that such relation existed, the court should have admitted it, and opportunity to amend the pleadings, if necessary, should have been afforded. If there was any question about the correctness of these views, it has been waived by counsel for defendants in error, who recognize the solicitude of the courts for the interests of minors and the jealous care with which their rights are guarded.

The offer...