Parrish's Estate, In re, 572A244

• Court: Indiana Appellate Court
• Writing for the Court: SULLIVAN; BUCHANAN, P.J., and WHITE
• Citation: Parrish's Estate, In re, 293 N.E.2d 62, 155 Ind.App. 367 (Ind. App. 1973)
• Decision Date: 01 March 1973
• Docket Number: No. 572A244,572A244
• Parties: In the Matter of the ESTATE of Ivan Robert PARRISH, Deceased. Virginia NORRIS and William Parrish, Co-Administrators, Plaintiffs-Appellants, v. Mary MORTOR (Parrish), Defendant-Appellee.

Page 62

293 N.E.2d 62

155 Ind.App. 367

In the Matter of the ESTATE of Ivan Robert PARRISH, Deceased Virginia NORRIS and William Parrish, Co-Administrators Plaintiffs-Appellants, v. Mary MORTOR (Parrish), Defendant-Appellee.

No. 572A244.

Court of Appeals of Indiana, Second District.

March 1, 1973.

Rehearing Denied March 29, 1973.

Jones, Withers & Clifford, William R. Clifford, Anderson, for appellants.

Bayne Burton, Anderson, for appellee.

SULLIVAN, Judge.

This is an appeal from a judgment in favor of defendant-appellee, Mary Mortor 'Parrish' (hereinafter Mary) upon a petition to determine heirship filed by plaintiffs-appellants Virginia Norris and William Parrish, as Co-Administrators. Mary was judicially determined to have been the common law wife of the deceased, Ivan Robert Parrish (Parrish).

On September 23, 1971, appellants filed the Petition to Determine Heirship in which they asserted that the sole heirs of Parrish were, as of that time, his children. On October 15, 1971, Mary filed an objection to plaintiffs' petition alleging that she was the wife of Parrish by virtue of a common law marriage. Trial was held before the court on December 30, 1971 and the court entered judgment, finding Mary to be the wife of Parrish and sustaining her objections to plaintiffs' Petition to Determine Heirship. Plaintiffs timely filed a Motion to Correct Errors which was overruled.

Three issues are presented for review:

1) Was the decision supported by the evidence?

2) Did the court err in sustaining defendant's objections to testimony as to conversations with decedent concerning his relationship with Mary?

3) Did the court err in admitting certain documents over plaintiffs' objection?

DECISION BELOW IS NOT WITHOUT EVIDENTIARY SUPPORT

Burns' Indiana Statutes, Section 44--111, IC 1971, 31--1--6--1, provides as follows:

'All marriages known as 'common law marriages' entered into subsequent to the effective date of this act shall be and the same are hereby declared null and void.'

The above statute, being Acts 1957, Chapter 78, Section 1, page 138, became effective January 1, 1958. Thus, in the instant case the defendant, as proponent of the common law marriage, had to establish that such marriage existed prior to the effective date of the statute. In viewing the evidence, we need consider only that evidence most favorable to Mary and in support of the trial court's determination that she was in fact prior to 1958, Parrish's common law wife. That evidence is as follows:

Mary lived with Parrish from 1954 until his death on March 24, 1971. There was never a religious or civil marriage ceremony. A next door neighbor testified that in 1953 or thereabout decedent and Mary lived together along with Mary's daughter and Parrish's son Eugene and that Parrish referred to Mary as his wife. There was no question in the neighbor's mind but that they were man and wife.

Parrish and Mary, as husband and wife, visited her son Harry Mortor in Newport, Virginia and in Waukegan, Illinois. Parrish introduced Harry at times as his stepson.

Parrish's sister, Antha Lacey, testified that in 1954, Parrish introduced Mary as his wife. The sister also testified that Mary helped Parrish build a home in that she helped lay blocks and that she cooked for him and carried water, etc. She further testified that Parrish excitedly showed her rings he had purchased for Mary. Parrish filed tax returns as a single man through 1958, but in 1959, amended the 1957 and 1958 returns to reflect Mary as his wife. As stated in Sutherland v. Sutherland (1965), 246 Ind. 234, 238, 204 N.E.2d 520, 522.

'For the purpose of determining this question we must, to some extent, review the evidence in the light of Anderson v. Anderson (1956), 235 Ind. 113, 131 N.E.2d 301, which holds that to be a valid common-law marriage, there must be an express contract of marriage consummated in presente. In other words the mere living together as husband and wife and holding out as a married couple is not sufficient evidence to constitute a common-law marriage. We said at page 122, 131 N.E.2d at page 306:

'A contract by words in the present tense, or per verba de praesenti as the books express it, to be married or to be husband and wife, to comply with the well settled law on the subject must, of necessity, be an express contract, although it need not be in writing, and need not be in any particular words. * * *'

'The basis for that decision was that in this day and age the law does not look with favor upon common law marriages, since a public record and ceremony may be made thereof with ease, and thereby set at rest any questions of title or interest in property, inheritance or legitimacy of children. We are not living in the frontier days where hardships existed in attempting to make a public record of a marriage.'

In the announcement of the findings and judgment from the bench, the trial court indicated that filing of amended tax returns for 1957 and 1958 by Parrish indicated his intent and acknowledgment that as of that time, 1957, he and Mary were husband and wife and that the fact that Parrish as early as 1953 or 1954 introduced Mary to various people as his wife, reinforced the in presente nature of the marriage contract.

We think such conclusion was justified and that a reasonable trier of fact could find that the test enunciated in Sutherland v. Sutherland, supra, and its predecessors, with respect to establishment of a common law marriage was met. DeWitte v. DeWitte (1966), 140 Ind.App. 114, 222 N.E.2d 285.

The DeWitte case analyzes the Sutherland and Anderson opinions in relation to facts strikingly similar to those before the trial court in this case:

'The appellants' first contention is that the appellee has failed to show an express contract to marry, which is alleged to be necessary to find a common-law marriage. With this we disagree. The case of In Re Sutherland's Estate (1964), Ind.App., 195 N.E.2d 778, was, of course, reversed by the Supreme Court. But it was reversed not on the question of the prerequisite for a common-law marriage, but on the admissibility of certain evidence. The majority opinion of the Supreme Court in the In Re Sutherland's Estate case, supra, stated (246 Ind. 234, 204 N.E.2d) at page 524:

'Although, as stated above, there is some evidence of a contract of marriage in presente, we cannot say, after excluding the objectionable testimony of a 'ceremony', that the trier of the facts would still reach a finding of fact to that effect. The trial in this case was before the court without a jury.'

'Two judges dissented from the majority opinion and held that:

'Even if such evidence (about a ceremony) was improperly admitted, it was not prejudicial for the reason that appellee could have been, and was, declared to be the widow of the deceased in the absence of such testimony. Thus, as the Appellate Court points out, the error, if it existed was harmless. See Bowers, Admr. v. Starbuck (1917), 186 Ind. 309, 313, 116 N.E. 301.'

'In the case at bar, there were no objections interposed to the testimony of appellee as was the situation in the Sutherland case, supra, because of being the alleged widow of the decedent, Joseph DeWitte, in reference to the so-called 'dead mans statute.' Therefore, we are of the opinion that the remaining position taken by the Appellate Court in In Re Sutherland's Estate case, supra, is valid and sound law. It was stated in that case on page 783, in the majority opinion, that:

'Like other fact questions, the fact of agreement or contract of marriage may be inferred from all the attending circumstances made apparent by all the evidence.'

'The appellants in the In Re Sutherland's Estate case, supra, also placed heavy reliance on the Anderson case, supra. In referring to the Anderson case, supra, in In Re Sutherland's Estate (1964), 195 N.E.2d 778, 783, we quote:

'Furthermore, we find nothing in that opinion which indicates or suggests that the contesting parties had held themselves out in the community as living in the relationship of the marriage status. It follows that the expressions of the court in that case, apart from those necessary and essential to the determination of the actual question presented upon the stated, proven, factual situation, are not so far conclusive as to debar interpretive adoption of reasonable, necessary and impelling inferences drawn from various proven circumstances in the determination of whether there was a 'contract of marriage between the parties in words of the present tense'."

(140 Ind.App. 114, 124--125, 222 N.E.2d 285, 290.)

With respect to the point of distinction made by the DeWitte opinion concerning the testimony of the common-law widow, we note that such testimony, though not objected to, did not as reflected in the opinion purport to establish the existence of any words 'de praesenti', (as opposed to acts) which passed between the common law husband and the common law wife as presumably required by the Anderson decision. The common-law wife's testimony in DeWitte was therefore, cumulative in nature and not essential to the result reached in that...