Madia's Estate, In re

Decision Date18 March 1966
Docket NumberNo. 670743,670743
Parties, 35 O.O.2d 234 In re ESTATE of Edythe Sheridan MADIA, ow Edythe Sheridan.
CourtOhio Court of Common Pleas

Russell Z. Baron, Cleveland, for exceptor and movant Helene clay.

Donald J. Kennedy, Cleveland, for exceptor and movant Howard Burns, executor of the estate of Mildred Van Rooy, deceased.

Mancino, Mancino & Mancino, Cleveland, for administrator.


This matter comes before the court on a motion to vacate the granting of letters of administration, a motion to remove the administrator, and two exceptions to the inventory and appraisement of the estate. The purpose of all of these pleadings is to challenge the contention of Don Madia that he is the surviving spouse of Edythe Madia ow Edythe Sheridan and thus entitled to be the administrator of her estate and the sole heir-at-law to her property.

Since there was no evidence of a ceremonial marriage, the issue to be determined in this case is, did the relationship between Edythe Sheridan Madia and Don Madia establish a common law marriage?

The evidence in this case fairly discloses the following:

After 43 years of married life, Edythe Sheridan's first husband, Thomas, died on January 3, 1961, at their retirement home in California. Edythe brought her husband's body back to Cleveland for burial, and resumed an acquaintance with Don Madia whom she had non seen for three years.

This friendship ripened into a closer relationship and on or about May 2, 1961, Edythe came to live in the house at 9407 Denison Avenue in Cleveland, owned and occupied by Don Madia and his 83 year old mother, Agnes Madia. The property was a double house with Don Madia and his mother occupying the downstairs suite. It was unclear, as of May, 1961, who was occupying the upstairs suite.

Later on, in the middle of May, 1961, according to the testimony of Don Madia, Don and Edythe entered into a contract or marriage wherein they agreed to live together and to assume the relationship of husband and wife. Both were in their late fifties at this time.

During 1961, Don Madia introduced Edythe to his mother, his sisters, his niece, his attorney, his neighbors, and his insurance man as his wife. Edythe lived with Don and his mother in the Denison Avenue house.

In September, 1961, Don and Edythe flew to California where they were met by Don's brother, Frank, who had previously known Edythe and her first husband, Tom. Don introduced Edythe as his wife to Frank, who took them to the Sheridan house where they, Edythe and Don, occupied together one bedroom of the two bedroom house with Edythe's aunt occupying the other bedroom. Edythe introduced Don to her aunt as her husband.

Don stayed in California for two weeks doing repairs around the house and then returned to Cleveland. Later, in October, 1961, Edythe, still in California while Don was in Cleveland, added Donhs name to her California bank accounts. And Edythe remained in California until May, 1962.

In May, 1962, Edythe returned to the Denison Avenue house, which, at that time, was occupied by a tenant in the upstairs suite. This tenant continued to occupy the suite until July, 1962, and was then followed by another tenant who lived in the upstairs suite from November, 1962 to April, 1963.

In August, 1962, Don and Edythe returned to California together where they again stayed with Edythe's aunt in Edythe's house. During this trip, they stayed thirty day during which time Don replaced the garage roof. They tried to return to Ohio in Edythe's car, but it broke down, and Don and Edythe were forced to return by bus. Edythe again took up her residence at the Denison Avenue address.

In December, 1962, after Edythe purchased a new car, Edythe and a friend, Mildred Brokaw, drove to California. Mildred stayed with Edythe two weeks and then returned to Cleveland. Edythe stayed in California until July, 1963.

During 1962, Don introduced Edythe to his co-workers as his wife and she frequently made lunch for Don's work crew when they were in the vicinity of the Denison Avenue house. During this year, too, Don and Edythe visited together the niece and the aunt who are the exceptors in this matter, as well as other members of her family, but there was no evidence that Don or Edythe stated to her relatives that they were husband and wife.

In April 1963, the upstairs of the Denison Avenue house became vacant and in May, Don joined Edythe in California and they returned to Cleveland in July. Shortly thereafter, the gas service in the upstairs suite was instituted in the name of Edythe Sheridan. Don, however, claims that he and Edythe stayed upstairs together during this period, which extended to October, 1964, but that they took their meals downstairs with Don's mother, and that they continued to live together as husband and wife. No telephone was ever installed in Edythe's name during this or any other period of time and when friends or relatives of Edythe wanted to telephone her they called her at Don's telephone number downstairs.

During 1963, Don and Edythe visited Edythe's relatives. Other neighbors met Edythe as Don's wife. During this year Edythe's house in California, the reason for her several trips to that state, was sold.

In May, 1964, one of the exceptors visited Edythe at the Denison Avenue house and testified that Edythe told her at that time that she would not marry Don. Also in 1964, Edythe and Don visited together other relatives and friends of Edythe, and, in June, 1964, Don and Edythe went to Hot Springs, Arkansas to take the mineral baths.

En route there and back, Don and Edythe registered as man and wife in several motels and stayed at an apartment house in Hot Springs where Edythe had stayed before with her first husband, Tom. Edythe introduced Don to the manager of the apartment house as her new husband and they went out socially with him.

In October, 1964, the gas service to Edythe Sheridan in the upstairs suite was terminated and electrical service to a new tenant was instituted. Edythe, however, continued to live at the Denison Avenue house.

In January, 1965, Edythe became ill and was taken to the hospital where she remained for two weeks and returned to one of the downstairs bedrooms in the Denison Avenue house. In the early morning hours of February 27, 1965, Edythe again became ill and was readmitted to the hospital. She subsequently died on March 7, 1965 and she died without a will.

After her death, Don arranged for her funeral for which he was personally billed. Don, along with one of the exceptors, refused the hospital officials the authority to perform an autopsy.

At the funeral home, relatives of the exceptors testified that Don told everyone how tragic Edythe's death was and how Don and Edythe had had their blood tests so that they could get married.

Throughout her life with Don Madia, Edythe maintained her driver's license, her dog's registration, and other personal papers in the name of Edythe Sheridan. She was registered at the hospital as Edythe Sheridan, widow, and was so designated on her death certificate.

At the funeral home, she was listed as Edythe Sheridan, the obituary and the remembrance pamphlet referred to her as Edythe Sheridan, widow of Thomas Sheridan, and she was buried in the cemetery plot next to her first husband as Edythe Sheridan.

Likewise, throughout his association with her, Don Madia maintained and filed his income tax records as Don Madia, the 'unmarried head of household' and 'single', did not list Edythe Sheridan as a dependent and maintained savings and checking accounts with Edythe, Jointly as Edythe Sheridan and Don Madia.

Conflicting testimony was given as to the exact date of the alleged marriage as well as the statements about marriage made by Don Madia after Edythe died. Friends and relatives and neighbors of Don Madia testified forthrightly that there was a marriage between these two people, while relatives and friends of the exceptors testified equally forthrightly there was no marriage at all. What then was the relationship between Don and Edythe?

This court has previously held, that if the parties are competent to marry, all that is required to establish a common law marriage is proof of contract to marry per verba praesenti. (In re Estate of Soeder, 4 Ohio Misc. 96, 209 N.E.2d 175.) This proof, however, must be by clear and convincing evidence (In re Estate of McLaughlin, Ohio Prob., 197 N.E.2d 578; In re Estate of Maynard, 117 Ohio App. 315, 192 N.E.2d 281; Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118; and In re Estate of Redman, 135 Ohio St....

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