Maynard's Estate, In re

Decision Date11 June 1962
Citation192 N.E.2d 281,117 Ohio App. 315
Parties, 24 O.O.2d 95 In re ESTATE of MAYNARD.
CourtOhio Court of Appeals

J. Earl Pratt and William D. Kennedy, Ironton, for appellant Mary Compton (Maynard).

William J. Curry, Ironton, for appellee Clifford Maynard, administrator.

BROWN, Judge.

Appellant, Mary Compton, a. k. a. Mary Maynard, filed a motion in the Probate Court of Lawrence County, Ohio, alleging herself to be the surviving spouse of the decedent and requesting the court to set aside the application and letters of administration previously issued to Clifford Maynard the son of the deceased. Upon hearing, the Probate Court found that the appellant had not established that she was the surviving spouse of the decedent, and by entry of June 2, 1961, overruled the motion to set aside the application and letters of administration and the appointment of Clifford Maynard. A motion for a new trial was filed thereafter on June 12, 1961, and overruled on November 29, 1961.

Although seven assignments of error are listed by appellant, Mary Compton (Maynard), the principal question on appeal is whether the evidence adduced established a common-law marriage between Flem B. Maynard and Mary Compton (Maynard), thereby entitling her to letters of administration under Section 2113.06 of the Revised Code, as his surviving spouse.

Flem B. Maynard died January 27, 1960, a resident of Coal Grove, Lawrence County, Ohio. Pursuant to an application duly filed on February 5, 1960, Clifford Maynard, son of the decedent, was appointed administrator of his estate and letters of administration were duly issued. Thereafter, on February 19, 1960, appellant, Mary Compton (Maynard), filed the motion set forth above.

Flem B. Maynard was divorced from his first wife in 1939. In October 1945, Mary Compton (also known as Mary Maynard) moved to a house at 215 Memorial Street, Coal Grove, Ohio, where she lived with Flem B. Maynard until he died.

The other evidence adduced is succinctly stated in the trial court's opinion as follows:

'* * * a number of witnesses were presented and there is evidence that claimant lived in the home of deceased for a number of years, doing housework, such as cooking and cleaning and many other similar activities. Witnesses who were neighbors testified that they believed the parties to be married by reason of their cohabitation and demeanor. Mr. Corn, the mail man, testified of letters being sent to the home addressed to 'Mr. and Mrs.' Maynard. Mr. Snodgrass, an old friend of deceased, testified that he had been introduced to claimant as Mrs. Maynard in Russell, Kentucky. Such evidence tends to establish circumstantially an agreement of marriage. In 1951, an easement was executed by the parties, each signing the same instrument and claimant being referred to as wife of deceased and signing the name of 'Mary Maynard.' A bank account card was signed by both in 1954, at which time claimant signed her name as Mrs. Mary Maynard.

'On the other hand several neighbors who observed them living together did not recall having heard Mr. Maynard refer to claimant as his wife. There was testimony that deceased denied the marriage and a contract was introduced wherein it appeared that the parties 'contemplated' marriage in 1955. In 1956 an agreement was produced wherein claimant appears as an unmarried person.

'Other evidence was introduced, both in support of claimant's contention and to the contrary, and in 1929 a hospital record indicates claimant at that time to be deceased's spouse.'

Administrator's exhibit A in evidence is an ante-nuptial agreement between Flem B. Maynard and Mary Compton dated February 25, 1955. Section 7 provides:

'This agreement shall be in no wise construed to mean that either party is obligated to marry the other.' Section 4 provides:

'All property of either shall be distributed as if the deceased survives the other.'

The document was signed by deceased and the claimant who denied her signature, but the expert witness of claimant was of the opinion that the signature was that of Mary Compton, the claimant. The notary who acknowledged the signatures testified as to that act. In the motion for new trial claimant attempted to show fraud, claiming page one of the document was of a different type paper than pages two and three and was typed with a different typewriter than that used on pages two and three, and that page one was typed by a different person than the other pages. The trial court properly found no fraud had been established on the basis of this evidence alone.

Witness Clifford Maynard testified that the deceased gave him the agreement in 1955 with instructions to put it in a safe place, and the witness Wilda Stanley testified as to conversations with claimant wherein reference was made to the signing of papers and each party having 'own money.'

In arriving at its conclusion that no common-law marriage existed, the trial court aptly stated its views as follows:

'Frequently circumstances under which a man and woman cohabit are such that for convenience and to avoid embarrassment an appearance of legality is desirable before friends and associates and although a continued cohabitation consistent with marriage is evidence tending to establish same it is not conclusive. Documents signed by the parties are of greater weight in many instances. In this case the documentary evidence is in conflict but of the various documents introduced the administrator's Exhibit 'A' is the most direct and applicable document dealing with the issue herein presented. Whereas it is conceivable that for convenience or simplicity a signature might be affixed to a deed releasing dower or other rights of a spouse thereby relieving the necessity for explanation, the explanation is not forthcoming as to the reason for a direct and positive statement by both parties under oath that they contemplate marriage and agree to property rights between them, providing, however, that their agreement is not be construed to obligate either to marry the other when or if they were already married at the time of entering into such a contract.'

As stated by the Court of Appeals for Athens County in Brawley v. Thomas, Admr., 82 Ohio App. 400, 81 N.E.2d 719, if a common-law marriage is entered into by a man and woman with all necessary elements present, then neither nor both could thereafter abrogate or nullify the same before death other than according to law, yet in determining the relationship existing between these parties during these years documentary evidence 'carries great weight' and 'in the absence of a satisfactory explanation, therefore, it is most conclusive.'

The second assignment of error is that the court erred in excluding evidence offered by claimant, Mary Compton (Maynard), after evidence on the same subject matter had been offered by the adverse party.

On page 30 of the record, Mrs. Cassidy, a witness called for the appellant, was asked on cross-examination by the attorney for the administrator the following question:

'Q. What did she tell you? A. She only told me what the dirty trick he pulled on her.

'Q. What was the dirty trick she said Mr. Maynard pulled on her? A. He performed a marriage that wasn't legal.'

On page 150 of the record, Clifford Maynard, the administrator was asked by his attorney the following questions and gave the following answers:

'Q. Did your dad ever tell you whether or not he was married? A. Yes, he did.

'Q. Did he ever mention Mary Compton's name? A. Yes, he did.

'Q. What, if anything did he say in reference to Mary Compton and marriage? A. He said they wasn't married.'

Later, Mary Compton was called to the stand and asked questions concerning the transaction whereby she was purported to have entered into a marriage ceremony with Flem B. Maynard. The answers were excluded by the court as being in conflict with the so-called 'Dead Man's Statute,' Section 2317.03 of the Revised Code.

The following questions and proffered answers were thereafter offered by the attorney for the appellant in the record:

'Q. Mrs. Maynard, did you ever make an oral agreement with Flem Maynard to marry him?

'By William J. Curry: We object.

'Court: Objection sustained.

'By J. Earl Pratt: May we proceed your Honor, since this is not a trial to the jury but to the court and in order to save time and profer these answers subject to object * * *?

'By J. Earl Pratt: We would expect the answer to be that the witness did enter into a verbal agreement to marry Flem B. Maynard.

'Q. Now, did you enter into a formal marriage ceremony with Flem B. Maynard?

'By William J. Curry: We object.

'Court: Objection sustained.

'By J. Earl Pratt: We profer the answer that she did.

'Q. Where was that ceremony performed?

'By William J. Curry: Objection.

'Court: Objection sustained.

'By J. Earl Pratt: We profer the answer that it was at the home of a man at Genoa, West Virginia, whom Flem Maynard told her was his cousin.

'Q. Did you before this ceremony was performed go to the Court House at Wayne, West Virginia, and we profer the answer that she did.

'Q. Did you later learn that there was a question about the legality of the performance?

'By William J. Curry: We object to the form of the question and ask the question be stricken.

'Court: Objection sustained.

'By William J. Curry: And that he not be permitted to profer his answer to that question.

'Court: That objection is overruled.

'By J. Earl Pratt: The answer is that she did.

'Q. When did you first learn that there was some question about your marriage relationship?

'By William J. Curry: We object to the question as to form. We object to the question under the statute that we are going by the Deal Man Statute. Beyond there, we ask that he not be permitted to profer an answer.

'Court: As I understand the question, Mr. Pratt, the question does not relate to any ceremonial marriage which you...

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