Sutherlands Estate, Matter of

Decision Date27 January 1964
Docket NumberNo. 2,No. 19809,19809,2
Citation195 N.E.2d 778
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 Appellate Court

Opinion Superseded 204 N.E.2d 520.

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

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

MOTE, Judge.

In the administration of the estate of Edward M. Sutherland who died intestate at Scottsburg, Scott County, Indiana, on October 27, 1960, appellees filed a petition on March 16, 1961, to determine heirship. In the petition it was stated, among other things, that appellee, Bonnie B. Sutherland, as the surviving widow, claimed an interest in said estate. It was stated also that said decedent and said alleged widow had a minor son, Edward A. Sutherland, who likewise was an heir and had an interest in said estate. Neither of these parties was named as an heir in the application for letters of administration.

After notices, given under order of court, appointment of the necessary guardians ad litem, the matter was tried to the court, without a jury, after appropriate request for special findings of facts and conclusions of law.

The trial resulted in special findings by the court that appellee, Bonnie B. Sutherland, and decedent, Edward M. Sutherland, entered into an oral contract of common law marriage, unwitnessed, on or about the 22nd day of August, 1956; that thereafter they cohabited as husband and wife in Scottsburg, Indiana, and held themselves out as husband and wife to various acquaintances, neighbors and relatives until the death of Edward M. Sutherland; that Edward M. Sutherland was the father and Bonnie B. Sutherland was the mother of Edward A. Sutherland, their legitimate child. In its conclusions of law the court stated that the law and the equity were with the appellee, Bonnie B. Sutherland; that Bonnie B. Sutherland was the widow and an heir of Edward M. Sutherland, and that Edward A. Sutherland was a son and heir of Edward M. Sutherland.

Judgment was entered accordingly and appellee, Bonnie B. Sutherland, was adjudged to be entitled respectively to a widow's allowance of one thousand ($1,000.00) dollars and one-third ( 1/3) of the net estate, and that Edward A. Sutherland, son and appellee, was entitled to receive one-eighth ( 1/8) of two-thirds ( 2/3) of the net estate. The individual appellants herein were also determined to be heirs and were each allotted one-eighth ( 1/8) of two-thirds ( 2/3) of the net estate, except those heirs who were survivors of a deceased son, who were adjudged to be entitled to their sire's interest.

An examination of the record discloses that the decedent, Edward M. Sutherland, during the latter part of his life, was a barber and a minister. He had a church assignment in Scottsburg where he met appellee, whose name then was Bonnie B. Anderson. Although decedent then was married, he had dates with the said Bonnie B. Anderson, over the objections of her adoptive mother. Subsequently the decedent was divorced from his wife and thereafter he kept company with Bonnie and they engaged in sexual intercourse. In 1956 she found herself to be pregnant.

The evidence discloses that on the urging of Bonnie's mother by adoption, the decedent told the mother that he was going to get a blood test the following day and marry Bonnie. The latter had already obtained a blood test. It appears that when Bonnie and decedent went to the clerk's office at Jeffersonville, Indiana, to obtain a marriage license the office was closed, so they returned to Scottsburg and then went to a church the following day where they went through an unwitnessed ceremony. From that time, to-wit: on or about the 22nd day of August, 1956, the parties established their home with Bonnie's mother in Scottsburg and continued to live together as husband and wife until the death of the decedent. It is true, inasmuch as the decedent owned rental properties and conducted a barber business in Seymour, Indiana, that there were occasions when he did not return to spend his nights in the Scottsburg home. Several pictures introduced in evidence displayed, in an animated way, some of the home life of the parties, particularly with their infant son, in Scottsburg. Perhaps a dozen witnesses testified concerning experiences they had had with the parties in which the parties, one or the other, in and out of the presence of each other, held themselves out as husband and wife. Bonnie was involved in an automobile collision and she and the decedent, for a financial consideration, signed a covenant with the alleged tort-feasor not to sue.

On Edward A. Snyder, a minister of the Pilgrimage Holiness Church at Centerville, Indiana, was called as a witness for the appellees. He previously had served as a minister in Scottsburg and had known the decedent for about the last seven years of his life. He also knew Bonnie. On January 25, 1959, Bonnie and the decedent took their son, who had been born on January 23, 1957, to Centerville, Indiana, where said son was presented to the Lord in dedication by Edward M. and Bonnie B. Sutherland, at the Centerville Pilgrimage Holiness Church, and a certificate of said dedication was thereupon issued by the minister, the said Edward A. Snyder, bearing the names of 'Edw. M. & Bonnie Sutherland.'

It further appears that from and after the date of the unwitnessed ceremony at the little church near Scottsburg the parties immediately thereafter began to refer to each other as husband and wife, introducing each other to their friends as such, holding themselves out as husband and wife, acting like a man and wife. Such testimony concerning such facts was elicited from close friends, neighbors and business associates. Decedent gave Bonnie a wedding ring which she wore at all times.

It is true that appellants presented testimony and some documentary evidence designed to counteract the testimony of appellees' witnesses. However, we cannot escape the conclusion that there was ample, even overwhelming testimony, and inferences therefrom to be drawn, which support the conclusion of the trial court that the relationship of husband and wife did exist from and after the time of the 'ceremony' as hereinabove described. The cumulative effect of all of the evidence in this respect leads to the conclusion that there was in fact an agreement between the parties in praesenti to be husband and wife, as found by the trial court.

Appellants seasonably filed their motion for a new trial which was overruled, resulting in this appeal. The assignment of errors filed in this Court allege: (1) the court erred in overruling appellants' motion for a new trial; (2) the court erred in its conclusion of law number one; and (3) the court erred in its conclusion of law number two.

The first assignment of error is predicated upon the proposition that the trial court had no jurisdiction to determine the heirship.

The Acts of 1953, ch. 112, § 606, p. 295; § 6-606, Burns' 1953 Replacement, provides as follows:

'(a) At any time during the administration of a decedent's estate, the personal representative or any interested person may petition the court to determine the heirs of said decedent and their respective interests in the estate or any part thereof. Upon the filing of the petition the court shall fix the time for the hearing thereof, 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.' (Emphasis supplied).

Appellants insist that the failure to comply with the emphasized part of the above statute deprives the trial court of jurisdiction. It is admitted, however, that notice was given to all persons known to have an interest in the estate, and said persons, including appellants, appeared in the litigation. The record in this case does not disclose that this question concerning jurisdiction has been raised heretofore. It would seem, therefore, that any question concerning jurisdiction over the persons of the appellants has been waived. See Daniels v. Bruce (1911), 176 Ind. 151, 95 N.E. 569.

The Jackson Circuit Court, from which this appeal emanates, is a court of general jurisdiction, and it cannot be said that said court did not have jurisdiction of the subject matter of the petition for the determination of heirship, since the said court does have jurisdiction of that class of cases to which the one on appeal belongs. See § 4-303, Burns' 1946 Replacement. As stated in State ex rel. Dean et al. v. Tipton Circuit Court (1961), 242 Ind. 642, 181 N.E.2d 230:

'Jurisdiction has been held to embrace three essential elements in this State: '(1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case.' State ex rel. Johnson v. Reeves, Judge, etc. et al. (1955), 234 Ind. 225, 228, 125 N.E.2d 794, 796.

'Since the respondent court had jurisdiction of the class of cases to which the case at bar belongs, it had jurisdiction of the subject matter of the action herein. State ex rel. Johnson v. Reeves, Judge etc. et al., supra.

'There is no question that the respondent court had jurisdiction of the person, in as much as the relators filed their answer to the petition, and, in addition, sought affirmative relief from said court. State ex rel. Johnson v. Reeves, Judge, etc. et al., supra.

'In regard to jurisdiction of the particular case, this Court has stated that timely and specific objection must be made to the lack of jurisdiction over the particular case where the court has jurisdiction of the general...

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4 cases
  • Schultz v. Celebrezze, 3973.
    • United States
    • U.S. District Court — Northern District of Indiana
    • July 29, 1967
    ... ...         Theodore Schultz, plaintiff's father and administrator of Martin Trask's estate filed a petition in Lake Superior Court for a determination of heirship and an order was entered in ... indicate that a judgment against a non-party rendered without jurisdiction over the subject matter is not binding as against such party ...         Plaintiff also contends that the state ... ...
  • Parrish's Estate, In re, 572A244
    • United States
    • Indiana Appellate Court
    • March 1, 1973
    ...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-la......
  • Sutherland's Estate, In re
    • United States
    • Indiana Supreme Court
    • February 22, 1965
    ...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 ......
  • DeWitte's Estate, In re, 20553
    • United States
    • Indiana Appellate Court
    • December 27, 1966
    ...Estate (1965) Ind., 204 N.E.2d 520. The Supreme Court in this case overruled the decision of the Appellate Court as published in 195 N.E.2d 778, after accepting transfer of said cause. The primary authority used in both of the above opinions was the Anderson case, supra. In the Anderson cas......

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