Leonard's Estate, In re

• Decision Date: 27 March 1973
• Docket Number: Docket No. 13417,No. 1,1
• Citation: 45 Mich.App. 679,207 N.W.2d 166
• Parties: In the Matter of the ESTATE of Lillie Belle LEONARD, Deceased. Edward MAGWOOD, Plaintiff-Appellant, v. John Edward CLARK, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 166

207 N.W.2d 166

45 Mich.App. 679

In the Matter of the ESTATE of Lillie Belle LEONARD, Deceased.

Edward MAGWOOD, Plaintiff-Appellant, v. John Edward CLARK, Defendant-Appellee.

Docket No. 13417.

Court of Appeals of Michigan, Division No. 1.

March 27, 1973.

Released for Publication May 15, 1973.

Joseph Cassese, Cassese & Krolik, Detroit, for plaintiff-appellant.

Samuel T. Berkley, Berkley & Berkley, Detroit, for defendant-appellee.

Before LESINSKI, C.J., and T. M. BURNS and O'HARA ^*, JJ.

LESINSKI, Chief Judge.

Lillie Belle Leonard died intestate on March 14, 1969. Plaintiff Edward Magwood is her brother and heir. The defendant John Edward Clark claims to be her common-law widower. ¹ The Wayne County Probate Court entered an order determining heirs in December, 1970, concluding that John Edward Clark had been the common-law husband of the deceased. Mr. Magwood appealed to the Wayne County Circuit Court. There the case was heard De novo without a jury and the probate decision was affirmed. We granted leave to appeal June 19, 1972.

At the outset, we regard it as a well-settled rule that this Court will not substitute its own judgment on factual questions in a nonjury case for that of the trial court unless the facts clearly indicate that an opposite result must be reached. Bradshaw v. Blaine, 1 Mich.App. 50, 134 N.W.2d 386 (1965); Tait v. Ross, 37 Mich.App. 205, 194 N.W.2d 554 (1971). On the facts present in the case before us, the judgment of the lower courts must be reversed.

A valid common-law marriage requires the present agreement to live together as husband and wife made by persons who are free to marry, and their subsequent open cohabitation together as husband and wife. People v. Spencer, 199 Mich. 395, 402--403, 165 N.W. 921 (1917).

Evidence offered to prove a common-law marriage must be clear and convincing. The party who asserts the marriage bears this burden. Westfall v. J. P. Burroughs & Son, 280 Mich. 638, 274 N.W. 358 (1937). Once the proponent of such marriage makes out his prima facie case, the burden is upon the party attacking its validity to show that the marriage is invalid. In re Estate of Osborn, 273 Mich. 589, 263 N.W. 880 (1935). Once established, the presumption of the validity of a marriage, including a common-law marriage, is one of the strongest known in the law. Compelling evidence is necessary to overturn this presumption. Watts v. General Motors Corp. 308 Mich. 499, 14 N.W.2d 68 (1944).

Here, evidence was introduced showing that the deceased had first been married in the State of Alabama in April, 1922, to John L. Bullard; that they had parted without having children; and that the deceased began living with Mr. Clark in about 1941. There was also evidence that Mr. Clark had formerly been married. No evidence was introduced to show that either marriage had been dissolved by divorce or death.

We are faced with conflicting presumptions. First, the presumption that once entered, the marriage continues until ended by death or divorce. Doertch v. Folwell Engineering Co. 252 Mich. 76, 233 N.W. 211 (1930). Second, that a second marraige, once established, is presumed valid. Watts, supra. It is said that the presumption of validity which attaches to a second marriage arises because the law presumes morality of the parties, and also that parties to the marriage are not bigamists or their children bastards. May v. Meade, 236 Mich. 109, 210 N.W. 305 (1926); Killackey v. Killackey, 156 Mich 127, 120 N.W. 680 (1909). The presumption of the validity of a second marriage, if the marriage is proved, predominates over the presumption favoring the continuance of a prior marriage. Weinert v. Tallman, 346 Mich. 388, 78 N.W.2d 141 (1956). ²

But Mr. Clark is not entitled to the presumptions flowing from an established second marraige. His proofs failed to establish that there was a common-law marriage between himself and the deceased. The bald assertion that John L. Bullard was dead is not sufficient of itself to show that Lillie Belle Leonard was free to marry, nor was Clark's claim that he was a widower sufficient to show his freedom to marry.

The case of In re Osborn's Estate, Supra, involved a similar issue. In 1909 Mattie Stocks married Joe Stocks in the State of Georgia. He deserted her and was never heard from again. Mattie then married Jesse Osborn in a ceremony in July, 1915. He too deserted her, moving to Ohio and then to Detroit where he died in March, 1934. Gertrude Osborn claimed a common-law marriage, beginning in 1922, which lasted until Jesse Osborn's death. The Court said, 273 Mich. at pages 593--594, 263 N.W. at page 881:

'The ceremonial marriage between Jesse Osborn and Mattie Stocks, in Georgia in 1915, was valid and, there being no proof of subsequent dissolution thereof and Mattie Osborn living, it continued until the death of Mr. Osborn. Consequently, the claimed common-law marriage between Jesse Osborn and plaintiff was void, and Mattie Osborn is the widow of Jesse Osborn.'

Similarly, in the case of Crockett v. Consolidated Paper Co., 281 Mich. 571, 275 N.W. 253 (1937), the plaintiff claimed to be the common-law wife of a workman employed by the defendant. Plaintiff had been married to a Mr. Willis in the State of Georgia. She left him and moved to Michigan to live with the deceased. At the time of the workman's death in Michigan, no decree of divorce had been entered in the Georgia court.

'No decree of divorce having been entered in the Georgia court until after the death of Mr. Crockett, the entry of it then, Nunc pro tunc, could not validate the claimed common-law marriage.' Crockett, at p. 573, 275 N.W. at p. 253.

In Braymer v. Overton Machine Co. 324 Mich. 648, 652--653, 37 N.W.2d 659, 661 (1949), a workman's common-law wife sought compensation when her 'husband' was killed in an industrial accident. The Court there stated:

'In order for plaintiff to establish her claim she must at least offer prima facie proof of the validity of the claimed common-law marriage.

'Assuming in this instance that plaintiff made a prima facie case of the existence of a common-law marriage, it follows that a presumption of its validity was established, and that the burden then shifted to defendants to prove either that she had previously been married or that she had previously been married and that that marriage had not been dissolved. See May v. Meade, 236 Mich. 109, 210 N.W. 305 (1926); Hess v. Pettigrew, 261 Mich. 618, 247 N.W. 90 (1933); Watts v. General Motors Corp. 308 Mich. 499, 14 N.W.2d 68 (1944); and Jones v. General Motors Corp. 310 Mich. 605, 17 N.W.2d 770 (1945).

'In the light of this record it is unnecessary for us to determine the exact extent of defendants' burden, because plaintiff's previous marriage was undisputed and the testimony shows that this marriage had not been terminated.'

Here too we do not go into the proofs requisite on the part of those who oppose the defendant's contention that there was a common-law marriage. Both of the prior marriages of Lillie Belle Leonard and Mr. Clark are undisputed and no competent evidence was ever offered to show either was terminated.

Furthermore, the evidence presented is insufficient to substantiate a finding that the parties lived together and held themselves out to the world as husband and wife. In nine different job applications John Clark represented to employers that he was a single man, ostensibly, he claims, to avoid racial prejudice. We are sympathetic to this reasoning....