Lambrose v. Topham

• Decision Date: 14 December 1951
• Citation: 55 So.2d 557
• Parties: LAMBROSE v. TOPHAM et al.
• Court: Florida Supreme Court

Page 557

55 So.2d 557

LAMBROSE v. TOPHAM et al.

Supreme Court of Florida, Division B.

Dec. 14, 1951.

Robert L. Achor, Miami, and L. W. Renfroe, Tallahassee, for appellant.

E. Paul Beatty, Miami, for Litza Topham and Eugenie Nikakis.

Louis A. Sabatino, Miami, for Fotine Lambrose and Vasso Forotheou.

MATHEWS, Justice.

This case involves an alleged common law marriage. Alexander Lambrose came to this country from Greece many years ago. He died in Miami on November 9th, 1949, where he was a resident. On January 13, 1948, he had executed a will, which was a few days following the death of his wife.

This will was filed for probate in the County Judge's Court in Dade County. A woman who claimed to be Mrs. Alexander Lambrose filed a caveat in which she alleged that she was the common law wife of Alexander Lambrose, deceased. The appellees herein, being the beneficiaries under the will, filed their answer expressly denying that the appellant Harriet Lambrose (Mrs. Alexander Lambrose) was the widow of Alexander Lambrose, deceased.

In due course protracted hearings were held and testimony taken upon the issues as made. The County Judge made an order that: 'Harriet Lambrose, also known as Harriet Tyman, is not the widow of the said decedent by virtue of a common law marriage'. In the course of the order the Court stated: 'This Court finds that the said Caveator has failed to establish that there existed a common law marriage between herself and the said decedent.'

The Circuit Judge affirmed this order of the County Judge.

The appellant on this appeal has propounded two questions: (1) Is the burden of proving a common law marriage on the person or persons who assert the illegality of the marriage? and (2) Where uncontradicted testimony shows a present, mutual agreement to be man and wife, and the overwhelming weight of the evidence shows subsequent cohabitation and reputation as man and wife in the community of residence, is a common law marriage established?

It is well established in this state that the person who asserts the illegality of a marriage must assume the burden of proof of the assertion. Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789. From the language contained in the order of the County Judge it is apparent that he considered the burden of proof on the appellant to establish her marriage to the deceased.

It is true that the appellant was required to establish a prima facie common law marriage. This was done by the uncontradicted testimony not only of the appellant but by more than a dozen witnesses living in the community. The burden then shifted to the appellees. In Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 857, 146 So. 668, this Court held: '[W]here the probate judge misapprehended the legal effect of the evidence as an entirety, his findings should not be sustained merely because there is evidence that is contradicted on which the findings may be predicated.' See also to the same effect In re Thompson's Estate, 145 Fla. 42, 199 So. 352.

Several hundred pages of testimony appear in the record. It would be too burdensome to summarize all of this testimony. We may point...