Pickens v. O'hara
| Citation | 200 S.E. 746 |
| Court | West Virginia Supreme Court |
| Decision Date | 06 December 1938 |
| Parties | PICKENS et al. v. O'HARA et al. |
PICKENS et al.
v.
O'HARA et al.
Supreme Court of Appeals of West Virginia.
Dec. 6, 1938.
[200 S.E. 747]
1. Under Code, 57-3-1, removing with certain exceptions the common-law disability to testify, the testimony of a party, to be incompetent, must be against a person in a capacity specified in one of the exceptions, contained in the statute. The fact that a witness bears a relationship to a decedent does not render incompetent his testimony of a personal transaction with the decedent unless against a person of a class named in the statute. Thus, in a suit brought for the purpose of establishing the claim of children, alleged to have been born as a result of a common-law marriage with a decedent, who was a life tenant under his ancestor's will to a fund which accrued under the provisions of said will, the other party to the claimed common-law marriage may testify as to the transactions which resulted in the alleged union, against the residuary devisees and legatees under said will.
2. Where the trial chancellor rejects competent testimony offered on behalf of the losing party, such rejection ordinarily requires that the cause be reversed and remanded for the consideration of such evidence. But if a finding of the trial chancellor in favor of the party offering the rejected testimony would have been contrary to the plain preponderance of the whole evidence, had he considered the rejected testimony, the finding of the trial chancellor on the evidence, considered by him, will not be disturbed.
3. A common-law marriage results only from contract and operates from the date thereof. Cohabitation and all subsequent relationships between the parties do not constitute a part of the contract. They simply are evidence tending to support or override the existence of a marital contract.
4. Where a claim to property through a common-law marriage, under Code, 42-1-7, is attempted to be asserted, evidence of an intervening ceremonial marriage of a decedent with a person other than the other party to the claimed common-law marriage, and a constant and persistent use by the claimed common-law wife of her maiden name and the giving of that name to the children instead of their father's, militates strongly against the testimony of the woman who attempts to establish a marital contract.
5. Code, 42-1-7, providing that "The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate, " being a humanitarian statute, should be liberally construed so as to embrace a common-law marriage contracted in this state; but such construction does not dispense with the proof of such marriage or take from the persons asserting it the burden of such proof.
6. Quaere: Does Code, 42-1-7, apply to the property of a person dying testate?
HATCHER and KENNA, JJ., dissenting.
Appeal from Circuit Court, Monongalia County.
Suit by Polly Pickens and others against Katie Keister, T. A. Whelan as special receiver, Grace Edmiston, an insane person, and Prudence McClellan O'Hara, in her own right, and as committee for Grace Edmiston, an insane person, and as administratrix de bonis non of the estate of William E. Arnold, deceased, to establish the right of the plaintiffs and Katie Keister to a share of certain funds in the hands of T. A. Whelan, special receiver, and to a share of other funds in the hands of Prudence McClellan O'Hara, administratrix de bonis non, to permit T. A. Whelan, special receiver, to settle his accounts as special receiver, and to require a settlement of the accounts of Prudence McClellan O'Hara, as administratrix de bonis non of the estate of William E. Arnold, deceased. From a decree denying relief prayed for, the plaintiffs and Katie Keister appeal.
Decree affirmed.
Linn Mapel Brannon, of Weston, A. F. McCue and H. M. Garrett, both of Clarksburg, and Kingsley R. Smith, of Weston, for appellants.
Herbert M. Blair, of Weston, and W. G. Stathers and Arch M. Cantrall, both of Clarksburg, for appellees.
RILEY, Judge.
Plaintiffs and Katie Keister, one of the defendants, appeal from a decree of the
[200 S.E. 748]Circuit Court of Monongalia County denying the relief prayed for in the bill and in the answer of Katie Keister. This suit was instituted in the Circuit Court of Lewis County, and upon the disqualification of the judge of that court, was transferred to the Circuit Court of Monongalia County.
Polly Pickens, Harvey Radcliff Arnold, Annie Hitt, Ralph Radcliff Arnold, Warder Wilson Arnold and Austin James Radcliff Arnold, an infant, by Icie Radcliff Arnold, his next friend, brought this suit against Katie Keister, T. A. Whelan, special receiver, Grace Edmiston, an insane person, and Prudence McClellan O'Hara in her own right and as committee for Grace Edmiston, an insane person, and as administratrix de bonis non of the estate of William E. Arnold, deceased. The purposes of the suit are (1) to establish the right of the plaintiffs and Katie Keister to a share of certain funds in the hands of Whelan, special receiver, and to a share of other funds in the hands of Prudence McClellan O'Hara, administratrix, d.b.n.; (2) to permit Whelan to settle his accounts as special receiver; and (3) to require a settlement of the accounts of Prudence McClellan O'Hara as administratrix, d.b.n. of the estate of William E. Arnold deceased. The real object of the plaintiffs and Katie Keister in this litigation is to obtain a share of the estate of William E. Arnold, deceased, who was the father of Wilson A. Arnold. The will of William E. Arnold, after providing for his two daughters, and establishing a spendthrift trust for Wilson A. Arnold to be administered during the life of the latter, provided for disposition of the corpus of such trust in the following language: "The principal whatever it may be I will to any children my son Wilson may have surviving him. If he has none, then in that event, I will said principal to the children of my daughters Mary and Floride per capita." The plaintiffs lay claim to the trust res as surviving children of Wilson A. Arnold, and the defendants, Grace Edmiston and Prudence McClellan O'Hara, as children of William E. Arnold's two daughters, Mary and Floride, respectively. Plaintiffs' claim, as shown by pleadings and brief, is confined solely to the theory of a common-law marriage.
The ultimate question, upon the answer to which the solution of this case depends, is: Was there a common-law marriage between Icie May Radcliff and Wilson A. Arnold, the parents of the plaintiffs and Katie Keister, so that the issue of such marriage will be legitimated by the provisions of Code, 42-1-7? This section of the Code, providing that, "The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate, " legitimatizes the issue of common-law marriages. Kester v. Kester, 106 W.Va. 615, 146 S.E. 625; Fout v. Hanlin, 113 W.Va. 752, 169 S.E. 743; Luther v. Luther, 119 W.Va. 619, 195 S.E. 594.
On the hearing of this case, the circuit court ruled that the testimony of Icie May Radcliff as to personal transactions between her and Wilson A. Arnold, deceased, was inadmissible because Icie was a party to the suit as prochein ami for her son Austin, an infant at the time suit was instituted (Cooper v. Cooper, 65 W.Va. 712, 64 S.E. 927), and for that reason, plaintiffs had failed to establish a "specific verbal contract" constituting a common-law marriage. We are at this point concerned only with the admissibility of her testimony and its possible effect on the decision of this case if it had been considered by the circuit court, and not with the nature of the agreement required to be established in order to show a common-law marriage. We shall first consider the competency of Icie to testify as to her agreement with Wilson, and then we shall consider the effect and weight of such testimony.
There can be no question that Icie testified to a specific contract of common-law marriage. According to Icie, the contract was made in 1893, about three weeks after the death of Wilson A. Arnold's first wife, and the circumstances of its making and its terms are detailed by her as follows: "Well, I got supper and we washed the dishes, and was nobody there but one man in the house, and he was there for supper, and we went in his (Wilson's) room and talked, and I sat down on his lap and we talked the matter over, and he said let's live as man and wife, and we set then and talked awhile, and I agreed then to live as man and wife, and we set and talked, of course, and made love to one another, is what we did, and so we went to bed, and I was with him then from that on for forty-one years, lived as man and wife." This relationship, so she testified, was to last "until death taken one or the tother of us."
In our opinion, this testimony was improperly rejected. Code 57-3-1, with certain exceptions, removes from
[200 S.E. 749]parties the common-law disability to testify. To render the testimony of a party incompetent, the questioned testimony must be against a person in one of the capacities specified in one of these exceptions. Board of Education v. Harvey, 70 W.Va. 480, 74 S.E. 507; Shuman v. Shu-man, 79 W.Va. 445, 91 S.E. 264. The fact that a witness bears a relationship to a decedent does not render incompetent his testimony of a personal transaction with the decedent unless against a person of a class named in the statute. Savage v. Modern Woodmen of America, 84 Kan. 63, 113 P. 802, 33 L.R.A..N.S., 773; Wootters v. Hale, 83 Tex. 563, 19 S.W. 134; Clarke v. Ross, Iowa, 60 N.W. 627; Goodwin v. Fox, 129 U.S. 601, 9 S.Ct. 367, 32 L. Ed. 805; Douglass v. Snow, 77 Me. 91; Hodge v. Coriell, 44 N.J.L. 456; Partyka v. Zawadzki, 131 Misc. 854, 228 N.Y.S. 494. This provision of the Code renders incompetent the testimony of a party to litigation in regard to a "personal transaction or communication" between such party and a person deceased, insane or lunatic at the time of...
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