Long's Estate, In re

• Decision Date: 05 April 1960
• Docket Number: No. 49953,49953
• Citation: 102 N.W.2d 76,251 Iowa 1042
• Parties: In the Matter of the ESTATE of Harriette M. Bartlett LONG. Thomas M. LONG, Appellant, v. Curden S. BARTLETT, Appellee.
• Court: Iowa Supreme Court

Page 76

102 N.W.2d 76

251 Iowa 1042

In the Matter of the ESTATE of Harriette M. Bartlett LONG Thomas M. LONG, Appellant, v. Curden S. BARTLETT, Appellee.

No. 49953.

Supreme Court of Iowa.

April 5, 1960.

Rehearing Denied June 17, 1960.

McManus & McManus, of Keokuk, for appellant.

Charles P. Beard, of Keokuk, for appellee.

PETERSON, Justice.

There is only one important question in this case. It is primarily a question of fact. Were Thomas M. Long and Harriette M. Bartlett husband and wife, either by ceremonial or common-law marriage at the time of her death on June 14, 1956?

She died intestate. Shortly after her death Thomas M. Long made application for appointment as administrator, filing the application under the name of Harriette M. Bartlett Long and claiming in the petition he was her surviving husband. Letters of administration were issued to him on June 25, 1956.

On January 7, 1959, Gurden S. Bartlett, decedent's brother and only heir, filed application in the probate proceeding alleging there had never been any marriage between his sister and Thomas M. Long. He prayed that the court determine what interest, if any, Thomas M. Long has in her estate. Mr. Long filed answer thereto alleging marriage between him and decedent and denying all other allegations in the application and an amendment filed later.

A motion to dismiss was filed and overruled. Appellant now claims he should have been granted a jury trial. There is no basis for this claim in this court. We will consider the question later.

The trial court decided in favor of applicant, decedent's brother. Respondent has appealed. We will refer to respondent as appellant.

I. We will first consider respondent's contention that he entered into a ceremonial marriage with Harriette M. Bartlett. He testified that in October of 1932 he and Miss Bartlett traveled by automobile from Canton, Missouri, where they were living at that time, to some town near Chicago, Illinois. He states they were there married by a Justice of the Peace. He could not remember the name of the town. He offered no license in evidence. He claimed he had written to a number of towns near Chicago to try to get a copy of the license, but had been unable to do so.

They drove back toward their home on the same day, and stopped at a tourist home for the night, but he does not remember the name of the town where they stopped. As to his testimony concerning this matter he was an incompetent witness under Section 622.4, 1958 Code of Iowa, I.C.A. Wordthington v. Diffenbach, 184 Iowa 577, 168 N.W. 257; In re Wittick's Estate, 164 Iowa 485, 145 N.W. 913; In re Boyington's Estate, 157 Iowa 467, 137 N.W. 949.

The only other evidence in the record in connection with the ceremonial marriage was the testimony of two residents of Keokuk, Iowa. They could not remember the time, but they testified that decedent told them some years ago that she had been married to Thomas M. Long in some town near Chicago. However, in 1946, a longtime friend of decedent testified that she and her husband met decedent one day at Quincy, Illinois. Mr. Long came up to them while they were visiting, and the witness testified that decedent said: 'Mr. and Mrs. Azinger I want you to meet my boy friend.'

While there is an abundance of evidence, as we will hereafter outline, as to the parties living together most of the time between 1932 and 1956, there is no other evidence with reference to the occurrence of a ceremonial marriage. In view of Mr. Long's incompetency as a witness and his failure, and that of decedent, throughout many years to announce any marriage to friends or relatives, the proof as to the existence of a ceremonial marriage is not persuasive. We sustain the position of the trial court in holding that respondent failed to carry the burden of proof as to such a marriage.

II. Many states recognize the validity of common-law marriages, if the proper elements of proof are present. Some states have abolished common-law marriage by statute. Missouri, in which the decedent and the respondent lived up until 1948, abolished such marriage by statute adopted in the year 1921.

Iowa has recognized common-law marriage in decisions extending back almost one hundred years. The policy has been reinforced throughout the years by periodical decisions of approval. One of the early cases was Blanchard v. Lambert, 43 Iowa 228. Other decisions of approval are: Our recent cases of In re Estate of Stopps, 244 Iowa 931, 57 N.W.2d 221, and Gammelgaard v. Gammelgaard, 247 Iowa 979, 77 N.W.2d 479. Also see McFarland v. McFarland, 51 Iowa 565, 570, 2 N.W. 269; Leach v. Hall, 95 Iowa 611, 64 N.W. 790; Gibbs v. Farmers' & Merchants' State Bank, 123 Iowa 736, 99 N.W. 703; Brisbin v. Huntington, 128 Iowa 166, 103 N.W. 144; State v. Rocker, 130 Iowa 239, 106 N.W. 645; Pegg v. Pegg, 138 Iowa 572, 576, 115 N.W. 1027; In re Estate of Boyington, supra; In re Wittick's Estate, supra; Worthington v. Diffenbach, supra; Reppert v. Reppert, 214 Iowa 17, 241 N.W. 487; State v. Grimes, 215 Iowa 1287, 247 N.W. 664.

Mississippi acknowledges common-law marriage. Its decisions are quite similar to ours. The case of Ladnier v. Ladnier, 235 Miss. 374, 109 So.2d 338, is almost identical with case at bar. The court denied existence of a common-law marriage. Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826, is a leading common-law marriage case.

In general terms common-law marriage is defined in 55 C.J.S. Marriage § 6: '* * * there should be an actual and mutual agreement to enter into a matrimonial relation * * * between parties capable in law of making such a contract * * * consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. * * * It has been held that, if any of the essentials of a common-law marriage are lacking, the relationship is illicit and meretricious and is not a marriage.'

Also see 55 C.J.S. Marriage § 43a as follows: 'There is no presumption that persons are married. Accordingly the burden of proving a marriage rests on the party who asserts it, particularly where a common-law marriage is asserted.'

Also 55 C.J.S. Marriage § 45b: 'A claim of common-law marriage is regarded with suspicion and will be closely scrutinized. Thus, in order to establish a common-law marriage, all the essential elements of such a relationship * * * must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead; and such marriage must be proved by a preponderance of the evidence.'

From consideration of the many Iowa decisions, and of the principles stated in decisions in many other states, we are outlining the elements and conditions necessary to establish the existence of a common-law marriage: 1. Intent and agreement in praesenti, as to marriage, on the part of both parties, together with continuous cohabitation and public declaration that they are husband and wife. 2. The burden of proof is on the one asserting the claim. 3. All elements of relationship as to marriage must be shown to exist. 4. A claim of such marriage is regarded with suspicion, and will be closely scrutinized. 5. When one party is dead, the essential elements must be shown by clear, consistent and convincing evidence.

In order to consider the weight of the evidence as to common-law marriage, we will present a synopsis of the testimony offered by the respective parties.

III. The following was offered by respondent. He had the burden. He testified that he and decedent had conhabitated together from 1932 until her death in 1956, with two exceptions. He testified: 'Hattie and my mother didn't get along and Hattie came to Keokuk (early in 1933) and stayed in her house (Hattie's) here until my mother dies in 1934. After that Hattie * * * came back to Keokuk to do washing and clean up her home here and to cook meals for Gurden.' There is a serious question as to the witness being competent as to the details of such cohabitation in view of Section 622.4. See cases cited in Division I.

The trial court reserved ruling on objections as the evidence was being presented. We have held, however, that the witness is competent as to some of such type of evidence in order to show intent. In In re Wittick's Estate, supra [164 Iowa 485, 145 N.W. 915], we said: 'Much of the testimony objected to in this case was of conversations between the appellee and Wittick, as to which no other witness had testified, and we think it comes clearly within the rule of the statute, and is incompetent as proving an agreement, but is in part admissible as proof of her intent and the circumstances under which their relations commenced.'

Four witnesses testified they had known decedent and respondent, in recent years in Iowa, and from their observations, they testified the parties lived together as husband and wife.

In Missouri decedent had an auto driver's license issued to her in the name of Harriette Bartlett Long.

A few letters and many Christmas cards were introduced in evidence directed to Mr. and Mrs. Tom Long.

Three health and hospital policies were introduced showing the insured under the name of Harriette Bartlett Long.

An election official testified she voted in Iowa in 1952, 1954, and 1956 under the name of Harriette Long.

IV. The testimony offered by and on behalf of applicant, brother of decedent, was in substance as follows:

Decedent purchased a farm in 1947 and the deed was issued to her under the name of Harriette Mary Bartlett. She also owned a house in Keokuk which stood in her name, but this was apparently purchased before the alleged marriage.

In July of 1950 she purchased ten one thousand dollar Series E United States Government bonds under the name of Miss Harriette M. Bartlett. She also owned five one thousand dollar Series E United States bonds, which she purchased in September of 1943, under the name of Harriette M....