Markley v. Hudson

• Decision Date: 05 April 1944
• Docket Number: 29620.
• Citation: 54 N.E.2d 304,143 Ohio St. 163
• Parties: MARKLEY et al. v. HUDSON et al.
• Court: Ohio Supreme Court

54 N.E.2d 304

143 Ohio St. 163

MARKLEY et al. v. HUDSON et al.

No. 29620.

Supreme Court of Ohio

April 5, 1944

Syllabus by the Court.

1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a commonlaw marriage.

2. While such agreement to marry in prasesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.

Appeal from Court of Appeals, Coshocton County.

This action originated in the Probate Court of Coshocton County under the provisions of Section 10509-95 et seq., General Code, to determine the persons entitled to share in the distribution of the estate of William T. Markley, deceased and the amount of their respective shares.

The plaintiffs, appellees herein, through their petition claim to be the heirs at law and next of kin of the decedent, Markley. Russell Hudson, as guardian for Eleanor Hudson Markley, an incompetent, through his answer claims that William T Markley, at the time of his death, was the lawful husband of Eleanor Hudson Markley and that she is his surviving spouse and, therefore, his sole heir at law.

Both William T. Markley and Eleanor Hudson, natives of Coshocton county, had widowed mothers. Markley maintained a home for himself and his mother on South Ninth street for several years prior to her death which occurred in 1921. Following the mother's death he maintained bachelor quarters over a garage on the back end of the same lot until the latter part of 1927. During this time the Markley home was rented.

Eleanor Hudson, until the latter part of 1927, lived on Kenilworth avenue, in Coshocton, with her mother and her brother. William T. Markley, aged 45, and Eleanor Hudson, aged 38 in 1927, had been keeping company for some time. In the latter part of the same year Markley had the Markley home renovated and refurnished, for the most part, with new furniture, Thereupon, he and Eleanor Hudson moved into the home and there lived together until his death on February 7, 1941. On February 5, 1942, Eleanor Hudson Markley was committed to the Columbus State Hospital on account of mental illness and is still confined there. This case was tried in the Probate Court in which a jury found that William T. Markley and Eleanor Hudson Markley were husband and wife by virtue of a common-law marriage. The plaintiffs filed a motion for new trial which was overruled and judgment was entered for the defendants. An appeal was perfected to the Court of Appeals on questions of law. That court reversed the judgment of the Probate Court and entered final judgment for the plaintiffs on the ground that there was an absolute failure of proof of an element to sustain a common-law marriage, to wit, an agreement in prasesenti to marry.

The cause is now in this court for review by the reason of the allowance of a motion to certify the record of the Court of Appeals.

Lloyd S. Leech and Harold E. Hunt, both of Coshocton, for appellants.

C. O. Turner and Clyde Burklew, both of Coshocton, for appellees.

HART, Judge.

In the trial court, the following interrogatory, among others, was submitted to the jury: 'Did William T. Markley and Eleanor Hudson Markley enter into a mutual contract of present marriage accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they lived?'

This interrogatory was answered in the affirmative. It follows, of course, that if there was probative evidence in the record to sustain this verdict of the jury, the Court of Appeals erred in reversing the judgment of the Probate Court and in rendering final judgment for the plaintiffs.

The Court of Appeals, in its opinion, said:

'The overwhelming weight of the evidence is that these two people lived together as husband and wife over a period of 13 years that they lived the normal life of married persons; that Markley referred to the woman as his wife and she referred to him as her husband. Certain checks of Markley are in evidence made payable to her under the name of Mar. William Markley and they were so endorsed by her. There is in evidence a quit claim deed for certain real estate executed by a number of parties, among them being listed--'Ella Markley and William T. Markley, her husband.' They both joined in the execution of that deed. A member of the Coshocton county bar testified that on one occasion he was called by this woman for a consultation with reference to a proposed divorce; obviously the result of Markley's conduct. He testified that after this interview with her, Markley interviewed him, the purport of this interview being to suggest he go slowly in the matter because of Mrs. Markley's mental condition.

'This evidence would have been sufficient to have established a common-law marriage under the law of Ohio as it was at the time the members of this court and counsel in the case studied law. The then rule as understood by us all was set forth in the first branch of the Syllabus in the case of Bruner v. Briggs, 39 Ohio St. page 478, which is--'In an action by one as surviving husband, against the heir of a deceased wife, to recover an estate by the curtesy where the marriage is put in issue, a marriage, in fact, may be established by showing that they lived together and cohabited as husband and wife for a series of years, that they always recognized and treated each other as such, and that they were so treated and reputed in the community and circle in which they moved, although no record evidence was offered, nor evidence of any witness who saw them married, was given. Such evidence is competent, and its sufficiency to establish the fact of marriage is for the court or jury trying the issue to determine.' * * *

'But we are now brought face to face with the decision of the Supreme Court rendered in 1939 In re Estate of Redman, 135 Ohio St. 554, 21 N.E.2d 659. In that case * * * the court said:

"In this case, the evidence of the petitioner proved that the parties had cohabited and that they were recognized by those among whom they lived as man and wife. However, in addition to this, it is essentital to show an agreement in prasesenti to become husband and wife, to establish a marriage at common law. No such agreement or intention of these parties was shown to exist when they assumed their relationship, as is required.'

'This opinion of the Supreme Court was a per curiam opinion and as such expresses the opinion of the full court and is entitled to the same weight as the syllabus in an ordinary case. See 11 Ohio Jurisprudence, Section 148, page 799, and the authorities cited.

'We can see no escape from the application of this doctrine, as applied to the facts in the instant case. It is with frankly admitted regret that we reach the conclusion that the judgment of the Probate Court in the instant case must be reversed.'

In the judgment of this court, the Court of Appeals misinterpreted the pronouncement of this court in the Redm...