Lefkoff v. Sicro

• Decision Date: 14 January 1942
• Docket Number: 13958,13961.
• Parties: LEFKOFF v. SICRO et al. SICRO v. LEFKOFF.
• Court: Georgia Supreme Court

18 S.E.2d 464

193 Ga. 292

LEFKOFF v. SICRO et al.

SICRO v. LEFKOFF.

No. 13958, 13961.

Supreme Court of Georgia

January 14, 1942

In 1937 Mrs. Essie Harris Lefkoff filed in the superior court an equitable petition against Perle L. Sicro as administratrix of the estate of Mike Lefkoff, deceased, a sister of the deceased, and against other sisters, the brothers, and the mother and father of the deceased. It was alleged, that the plaintiff and the deceased in 1925 agreed to enter into and bear the relationship of wife and husband and this relationship continued until the death of Lefkoff that this was not a ceremonial marriage, but what is known as a common-law marriage; that after entering into said relationship she became in ill health, and Lefkoff, fearing that she had contracted tuberculosis from him, took her to Miami, Florida, in July, 1925 and spent a week there with her in a hotel, where he registered as man and wife; that immediately thereafter he came back to Atlanta, Georgia, but she remained in Florida until about April, 1926, when she returned to Atlanta; that from this time until the death of Lefkoff in September, 1936, they lived as man and wife at various places of abode in Atlanta; that she worked in his mercantile business, and was working there at the time of his death. The petition contained further averments as to the character and amount of his estate, and a claim to the entire estate as common-law wife. By amendment she charged that the administratrix had perpetrated fraud upon the court of ordinary, by procuring her appointment; and that the administratrix had mismanaged the estate. It was prayed that the plaintiff be decreed to be the common-law wife and widow of Lefkoff; that a receiver be appointed to take charge of the estate; that the defendants be enjoined from interfering with the estate; that the administratrix be removed that an accounting be had with the administratrix; and that general relief be granted.

All of the defendants (except one sister of the deceased, who was not served and filed no plea) demurred generally and specially to the petition. They answered, denying that plaintiff and Lefkoff were ever married by a ceremonial marriage, common-law marriage, or otherwise. They denied all the material averments of the petition as amended, and denied that plaintiff was entitled to any of the relief prayed. The demurrers were overruled, and exceptions pendente lite were taken to that judgment.

On a trial before the judge and a jury, by consent of the parties, on the sole issue of marriage vel non, the jury returned a verdict on that issue in favor of the defendants and a decree was entered in their favor. The plaintiff brought to this court her bill of exceptions on the refusal of a new trial; and the defendants brought their cross-bill of exceptions, assigning error on the exceptions pendente lite to the overruling of their demurrers. On the main bill this court reversed the judgment, because of an error in the charge to the jury; and on the cross-bill affirmed the judgment. Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687, 133 A.L.R. 738.

Thereafter the case was referred to an auditor, to hear and determine all questions of law and fact. The auditor, after hearing voluminous testimony, filed his report with findings of law and fact. With regard to the averments of a specific contract in 1925, whereby the decedent and the plaintiff agreed each with the other to assume the marital relation, the auditor found that 'no evidence was offered throughout the hearing to prove the existence of a specific contract between the plaintiff and the deceased, * * * except certain proffered evidence of the plaintiff herself to that effect'; that 'since it has already been made to appear in this report, under the rulings made on objections to evidence, heretofore set forth, that all testimony delivered by the plaintiff on this particular subject was, on timely objection made thereto, ruled out and disallowed, there is no legal evidence upon which to predicate a finding in favor of the plaintiff on this phase of the case'; and that 'no marriage was shown to have taken place, by direct evidence thereof, between the parties, as was alleged.' The auditor further found that 'the petition * * *, besides the allegation respecting a specific contract, included other averments which, in view of the former allegations that a definite contract of marriage at a certain time was entered into by the parties, are evidentiary in character' (these averments relating to the living together as man and wife in Florida and in Atlanta, Georgia, and to the holding out of the plaintiff as the wife of the deceased to those with whom he came in contact); that 'the plaintiff would not necessarily be debarred of recovery, despite her failure to prove the specific marriage contract alleged, provided she can establish by a preponderance of the evidence the facts touching cohabitation, habit, and repute, which are set forth in her petition'; and that 'under rulings made on objections to evidence, all testimony delivered by the plaintiff on the question of cohabitation between herself and deceased in Florida was ruled out and disallowed.' The auditor then found that 'the evidence is insufficient upon which a finding may be predicated in favor of the plaintiff as to her cohabitation with the deceased in Florida'; and that 'the plaintiff and deceased did not live together in Florida as man and wife.' He then received the oral and documentary evidence on the issues raised 'as to cohabitation between the plaintiff and deceased at each of the Atlanta addresses named in the petition,' and 'the evidence as to proof of a marriage * * * from their declarations and conduct and also from repute,' and as to whether such evidence was 'sufficient to incline an impartial mind to the plaintiff's side of the case rather than the other'; and held as a finding of fact that 'the evidence on the question of habit and repute, which includes the conduct of plaintiff and deceased between themselves and with third persons, preponderates in favor of the defendants,' and 'accordingly, I find that no contract of marriage was entered into between the plaintiff and the deceased.' He then made the general finding: 'I find in favor of the defendants on the issue of marriage vel non, and that the plaintiff cannot recover.' As to alleged fraud by the administratrix in her appointment, and the prayer for an accounting with her, it was found that the plaintiff had no right to complain or to have an accounting, since she was not the common-law wife or widow of the deceased. Independent findings, adverse to the plaintiff, were made as to other alleged acts of fraud and a waste of the estate.

The auditor made findings of law, excluding certain testimony offered by the plaintiff as to statements and declarations by the deceased before his death, and as to transactions between the plaintiff and the deceased before his death; and excluding a deposition of the plaintiff, taken by the defendants under the Code, § 38-1801, for the purpose of cross-examination of an opposite party, and containing testimony by the plaintiff as to transactions between her and the deceased. The auditor excluded all of this evidence, on the ground, that, the witness being a party plaintiff and the administratrix of the estate of the deceased being a defendant, the plaintiff was incompetent to testify under the Code, § 38-1603(1), as to such matters.

No exception to findings...