Tabor v. Fowler, 44155
| Decision Date | 28 February 1969 |
| Docket Number | No. 2,No. 44155,44155,2 |
| Citation | 167 S.E.2d 220,119 Ga.App. 259 |
| Parties | Evelyn M. TABOR v. Donald W. FOWLER |
| Court | Georgia Court of Appeals |
Dan E. McConaughey, Decatur, for appellant.
Frank A. Bowers, Atlanta, for appellee.
Syllabus Opinion by the Court
1. This is an appeal from a contest for letters of administration in the Court of Ordinary of DeKalb County, following a verdict in the superior court in favor of D. W. Fowler, the alleged common law husband of the decedent Willa Nell Fowler, and against the decedent's sister, Evelyn Tabor. The court, after correctly instructing the jury that the sole issue in the case was whether appellee was the common law husband of the decedent, charged in part as follows: Enumerations of error are directed at this excerpt from the charge.
There can be no doubt but that the court instructed the jury that if they found the parties had entered into an informal agreement with each other to be man and wife a common law marriage resulted regardless of whether or not there was cohabitation. This is in line with the majority opinion in Lefkoff v. Sicro, 189 Ga. 554, 6 S.E.2d 687, 133 A.L.R. 738. In Drewry v. State, 208 Ga. 239, 65 S.E.2d 916 the court held it would be erroneous to charge that if 'the defendant and John E. Drewry by agreement, in words of the present tense, to be man and wife, and being at the time capable of contracting marriage, with the intention thereby and thereupon to assume such relation, that such informal contract would be a valid marriage in this State.' It further expressly overruled Lefkoff and adopted as the law the dissenting opinion in that case which states in part: that cohabitation (dealt with as synonymous with consummation) 'is treated as essential, if not the main factor in establishing in this State a common-law marriage.' See also Hayes v. Hay, 92 Ga.App. 88, 92, 88 S.E.2d 306. It follows that an informal agreement not consummated by cohabitation between the parties is insufficient to establish a common law marriage, and that the instructions given the jury were most confusing on this issue. Although the charge was not objected to at the time, since it erroneously presented the sole issue for decision, it must be held reversible error under Code Ann. § 70-207(c). Brown v. Brown, 222 Ga. 446, 449, 150 S.E.2d 615.
2. The undisputed facts of this case show that the deceased and the appellee had formerly been...
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...sole issue for decision (Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615; McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378; Tabor v. Fowler, 119 Ga.App. 259, 167 S.E.2d 220) or 'whether it is of a kind which would have been likely to influence the jury either to find against the defendant or to ......
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