Sutherland's Estate, In re

Decision Date22 February 1965
Docket NumberNo. 30729,30729
Citation246 Ind. 234,204 N.E.2d 520
PartiesIn the Matter of the ESTATE of Edward M. SUTHERLAND, Deceased. Petition of Bonnie B. Sutherland for Determination of Heirship. Donald E. SUTHERLAND et al., Appellants, v. Bonnie B. SUTHERLAND et al., Appellees.
CourtIndiana Supreme Court

Thomas R. Haley, Seymour, Stephen W. Terry, Jr., Indianapolis, George H. Gossman, Seymour and Baker & Daniels, Indianapolis, of counsel, for appellants.

Robert R. Kelso, Robert A. Kelso, Kelso & Kelso, New Albany, for appellees.

ARTERBURN, Chief Justice.

This case comes to us on petition to transfer. See Ind.App., 195 N.E.2d 778.

It concerns the validity of an alleged 'common-law' marriage. Bonnie B. Sutherland, the appellee, asked for a determination of heirship to share in the estate of her alleged husband as a widow. The trial court rendered judgment in her favor.

The first error assigned for our consideration here is that the trial court had no jurisdiction of the action for the determination of heirship under the Acts of 1953, ch. 112, art. 6, Sec. 606, p. 320, being Burns' Ind.Stat.Anno. Sec. 6-606 (1953 Repl.) which provides that upon the filing of a petition for the determination of heirship, the court shall fix the time for hearing thereof and

'* * * notice of which shall be given to all persons known or believed to claim or have any interest in the estate or any part thereof as heir or through an heir of the decedent. In addition, notice by publication shall be given to all unknown heirs of the decedent.' (Our emphasis)

It is claimed that the court lacked jurisdiction by reason of failure to give notice 'to all unknown heirs of the decedent.' It is admitted notice was given to all known persons. The record does not disclose that there were any unknown heirs. The record does not show that the question as to notice was raised in the court below. Failure to raise this question constitutes a waiver. Daniels v. Bruce (1911), 176 Ind. 151, 95 N.E. 569.

The circuit court from which this appeal emanates is a court of general jurisdiction. The court had jurisdiction of the subject matter of the petition. State ex rel. Dean et al. v. Tipton Circuit Ct. (1962), 242 Ind. 642, 181 N.E.2d 630.

There is no showing that any of the parties to this action have been prejudiced by failure to give such notice. We do not hold that the trial court's decision would be binding upon an unknown heir if one existed without requisite notice having been given. We do not have that question here and the appellants, who were notified, may not complain of lack of notice without a showing of prejudice. It is further pointed out that the Probate Code requires publication of notice to all interested parties prior to final settlement. Burns' Ind.Stat.Anno. Sec. 7-1006 (1964 Supp.)

The next contention is that the decision of the trial court is contrary to law and is not sustained by sufficient evidence, namely that there was not sufficient evidence to sustain the court's finding that a common-law marriage existed between the appellee and the decedent.

The statute outlawing 'common law' marriages is not applicable in this case since it did not become effective until January 1, 1958. Burns' Ind.Stat.Anno. Sec. 44-111 (1964 Supp.)

This is not a case such as Reger v. Reger (1961), 242 Ind. 302, 177 N.E.2d 901, where the parties in good faith secured a license and went through a public marriage ceremony and a public record was made thereof and thereafter they found through a technicality the marriage was invalid.

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 commonlaw 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.

The evidence is ample here to show that these two parties lived together as husband and wife. It appears that they went to the clerk's office in Jeffersonville, Indiana to obtain a marriage license and found the office was closed. That was on or about August 21, 1956. The evidence shows that the decedent gave the appellee a wedding ring on August 22, 1956. There is also evidence from a third party, who stated that the appellee and the decedent drove up and announced to him that they 'had just got married' and that he then congratulated them. It further appears that thereafter they lived as husband and wife and held themselves out as such; that a child was born and the child was dedicated by the minister of the Pilgrimage Holiness Church at Centerville and a certificate was issued by the minister to the parents of the child, the appellee herein, and the decedent, it appears further that the decedent lived for the most part with the appellee in Scottsburg, Indiana, but that he had a barber business and some rental property in Seymour and there were occasions when he did not return to spend the night in the Scottsburg home. This, in our opinion is competent evidence going to show that both parties had consummated a contract in presente sufficient to support the judgment of the trial court, should the trial court see fit to believe it without the support of other testimony which we find inadmissible.

This improper testimony referred to was offered by the appellee as a witness in her own behalf and as the alleged widow of the decedent, in which she stated that after she and the decedent went to the clerk's office to secure a license and found it closed, they went to a church on the 22nd of August, 1956, at which time she testified they went through a 'ceremony'. To this testimony the appellants objected on the ground that the appellee was not competent to testify as to transactions that occurred prior to the death of the decedent under the statutes of this state. The trial court overruled the objections and permitted the admission of this testimony. In this respect it is our opinion that the trial court committed error.

Burns' Ind.Stat.Anno. Sec. 2-1715 (1946 Repl.) provides:

'When an executor or administrator is party-Exceptions.-In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate: Provided, however, That in cases where a deposition of such decedent has been taken, or he has previously testified as to the matter, and his testimony or deposition can be used as evidence for such executor or administrator, such adverse party shall be a competent witness for himself, but only as to any matters embraced in such deposition or testimony. [Acts 1881 (Spec. Sess.), ch. 38, Sec. 276, p. 240.]'

Burns' Ind.Stat.Anno. Sec. 2-1716 (1946 Repl.) provides:

'When heirs or devisees are parties.--In all suits by or against heirs or devisees, founded on a contract with, or demand against, the ancestor, to obtain title to or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor. [Acts 1881 (Spec. Sess.), ch. 38, Sec. 277, p. 240.]'

Testimony of the appellee as to 'any matter' which occurred prior to the death of the decedent is excluded under this statute. This includes transactions or actions as well as conversations.

One of the objects of these statutes is to prevent a person from testifying against an estate as to acts or conversations of the decedent when his lips are sealed by death. It is, in fact, a statute for the prevention of fraud.

To say that 'the litigation herein is not for the purpose of obtaining a judgment or allowance for or against the estate of the decedent' is not true. It is the very purpose of the appellee, as widow in this proceeding, to gain a widow's share in the estate. What she would gain would even have priority over the claims of creditors who are likewise incompetent to testify under the same statute. It does affect the amount to be distributed by the estate.

The statutes on competency of witnesses applicable in this case have been in existence at least as far back as 1865. (Acts of 1865, Spec.Sess., ch. LV, p. 160.)

A good review of the interpretation given these statutes is set forth in Wiseman et al. v. Wiseman (1880), 73 Ind. 112, 114, where it is stated:

'The motion for a new trial, and assignment of error based on the overruling thereof, present the question of the competency of the appellee to testify as a witness, in her own behalf. The act of March 11th, 1867, was in force at the time of the trial, and the appellant insists that, under the second proviso of the 2d section of that act, the appellee was not a competent witness,...

To continue reading

Request your trial
10 cases
  • Azimow v. Azimow, 468A61
    • United States
    • Indiana Appellate Court
    • March 3, 1970
    ... ...         This court in Estate of Dittman v. Biesenbach, Adm'r., etc. (1953), 124 Ind.App. 198, at pages 209--210, 115 N.E.2d 125, at pages 130--131, stated: ... 'Common-law ... ...
  • Taylor v. Taylor
    • United States
    • Indiana Supreme Court
    • November 28, 1994
    ... ... Patrick R. TAYLOR, Appellant, ... Josephine TAYLOR, Ronald R. Taylor, Bank One, ... Crawfordsville, NA, Personal Representative of the ... Estate of John Robert Taylor, deceased, ... and The Estate of John Robert ... Taylor, Deceased, Appellees ... No. 32S04-9411-CV-1124 ... Supreme Court of ... ...
  • Allen County, Ind. Bd. of Zoning Appeals v. Guiff
    • United States
    • Indiana Appellate Court
    • April 11, 1990
    ... ... the Allen County Board of Zoning Appeals, and the Lincoln National Bank and Trust Company (record title holder of interest in the subject real estate at that time). In addition, George Martin, attorney of record for Brewer, received by mail a courtesy copy of the petition for writ of certiorari ... ...
  • Parrish's Estate, In re, 572A244
    • United States
    • Indiana Appellate Court
    • March 1, 1973
    ...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 Ande......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT