Schilling v. Parsons

• Decision Date: 22 October 1941
• Docket Number: 16655.
• Citation: 36 N.E.2d 958,110 Ind.App. 52
• Parties: SCHILLING v. PARSONS.
• Court: Indiana Appellate Court

36 N.E.2d 958

110 Ind.App. 52

SCHILLING v. PARSONS.

No. 16655.

Appellate Court of Indiana, in Banc.

October 22, 1941

Hartzell & Todd and Guy Nichols, all of Fort Wayne, and Claude Cline, of Huntington, for appellant.

Charles H. Halter and Morris & Newkirk, all of Fort Wayne, for appellee.

BLESSING Chief Judge.

This appeal comes to this court as the result of the efforts of appellant, petitioner below, to secure to herself as sole distributee, the estate of appellee's decedent. Appellant's right as sole distributee to said estate is founded upon the claim that she was the common law wife of said decedent.

The case was tried to the court and upon proper request the court made a special finding of facts. The facts found by the court are as follows:

"1. The court finds that Otto M. Schilling, the decedent, died intestate, a resident of Allen County Indiana, on the 13th day of June, 1938, residing at the time of his death at 706 Van Buren Street, Ft. Wayne, Ind.; that Letters of Administration were issued in this court upon his estate on the 16th day of June, 1938, and that Elmer Parsons was appointed by this court and qualified as administrator of said estate; that on the 22nd day of December, 1939, said administrator filed in this court his final report in said cause, which final report was by the court approved, except as to the question of heirship raised by petitioner, Belle Gettys Schilling herein.

"2. The court further finds that Otto M. Schilling, the decedent, at the time of his death left no children or descendants of deceased children surviving him, and left no father or mother surviving him and no sisters or brothers surviving him.

"3. The court further finds that this petitioner met the said decedent in 1907, and that afterwards in the year 1908 said decedent and said petitioner entered into an agreement whereby the petitioner and decedent were to live together the decedent was to pay the bills, pay the rent and buy the coal, and the petitioner was to quit taking boarders; that the decedent gave her a gold ring to bind the contract to live together as husband and wife.

"4. That thereafter said petitioner and decedent did live together in various places in the City of Ft. Wayne Ind., for a period of about 30 years until decedent's death.

"5. That thereafter decedent did make certain purchases of groceries and coal and did purchase some clothing for petitioner, and did make payments of rent; that petitioner looked after and took care of these places of residence; that she prepared the meals; that she did his laundry and that they lived in and occupied the same home and bed.

"6. That almost continuously while they were residing in Ft. Wayne, Ind., over the 30 year period, the petitioner did keep boarders and roomers and conducted a rooming house in the same place where this decedent and petitioner resided, and that after his death, she told the coroner, the undertaker and a Mr. Prelle, that he was a boarder; and that she accepted from Mr. Prelle, $10.00 in payment of the board and room for his last week of life; that she told the coroner on his official call that the deceased, Schilling, was a single man.

"7. That during different summers, petitioner and decedent lived in and occupied the same bed and cottage at Lake James, Indiana, and at Lake Pleasant, Michigan; that on visits to the cities of Detroit, Port Huron, Toledo, Cleveland, Niagara Falls, New York City and Indianapolis, decedent registered for them as Mr. and Mrs. Otto M. Schilling at the various hotels where they occupied the same rooms.

"8. That outside of occupying the same house and same bed as herein before found this petitioner and decedent did not hold themselves out in Ft. Wayne, Ind., as husband and wife.

"9. That during the period of 1908 to 1938, to the time of the death of decedent, they occupied the same home, occupied the same bed, and at one or two times the decedent referred to the petitioner as his wife, and one or two times the petitioner referred to decedent as her husband, both times out of the presence of the other, but at no other times did they hold themselves out to their neighbors or the community in Ft. Wayne, Ind., or at the two lakes above mentioned, as husband and wife.

"10. That prior to his death and while occupying the same house, the petitioner signed a written contract for telephone service at the house where they both resided, and had the service listed under her name as Mrs. C. B. Gettys.

"11. That during the entire period from 1908 to decedent's death, petitioner caused her name to be listed in Polk's Directory as Mrs. C. B. Gettys; that after decedent's death, she made written application to the Department of Public Welfare for Old Age Pension under the name of Clarinda Belle Gettys; that there is no evidence that petitioner ever used the name of Schilling in Ft. Wayne, Indiana, during Otto M. Schilling's life time, but has used the names of C. B. Gettys, Belle Gettys, and Clarinda Belle Gettys during said time; that there is no evidence of said petitioner ever openly acknowledging in Ft. Wayne, Indiana, to her friends, neighbors or relatives that she was the wife of Otto M. Schilling during his life time.

"12. That at no time prior to the death of Otto M. Schilling, was petitioner and Otto M. Schilling as husband and wife."

Upon the above facts the court stated his conclusion of law as follows:

"Whereupon, the court now states his conclusion of law that the law is with the administrator, and that the petitioner take nothing under and by her petition herein, and any costs herein are now ordered taxed against said petitioner."

Exception was taken by the appellant to the court's conclusion of law after which the court entered judgment in favor of the appellee. The exception to the conclusion of law being the only error assigned, the sole question submitted for our consideration is whether or not the conclusion of law is supported by the finding of facts.

Appellant contends that the finding of facts establishes a common law marriage between appellant and appellee's decedent, and for that reason challenges the conclusion of law stated...