Yohn's Estate, In re

• Citation: 229 So.2d 612
• Decision Date: 23 December 1969
• Docket Number: No. L-431,L-431
• Parties: In re ESTATE of Carl Sylvester YOHN, Deceased.
• Court: Court of Appeal of Florida (US)

Page 612

229 So.2d 612

In re ESTATE of Carl Sylvester YOHN, Deceased.

No. L-431.

District Court of Appeal of Florida, First District.

Dec. 23, 1969.

Rehearing Denied Jan. 20, 1970.

John M. Coe, of Coe & Coe, Pensacola, for appellant.

Arthur C. Epperson, Foley, and Alan H. Rosenbloum, of Levin, Askew, Warfield, Craff & Mabie, Pensacola, for appellee.

WIGGINTON, Judge.

By this appeal we review a final order rendered by the County Judge's Court of Escambia County in probate by which a determination was made as to the beneficiaries of the estate of Carl Sylvester Yohn, deceased, as authorized by law. ¹

The decedent died in Mobile, Alabama, on June 19, 1967. Shortly thereafter a petition for letters of administration was filed in the County Judge's Court of Escambia County by Margaret Marie Yohn in which she represented that the decedent had died intestate and was survived by the petitioner as his widow and sole heir. Based upon this petition, letters of administration were issued in which the alleged widow was appointed administratrix and her bond fixed in the sum of $100.00.

While this estate was in the process of administration, a petition was filed by one Jackie Yohn, a minor 12 years of age, by his grandmother as next friend. This petition alleges that Jackie Yohn was the son of the decedent, having been born of the marriage between the decedent and one Myrtle Paul as a result of a ceremonial marriage between them which was solemnized in the State of Mississippi on June 1, 1955. The petition further alleges that the principal asset of the decedent's estate consists of a claim for damages arising from the wrongful death of the decedent for the recovery of which an action had been instituted by the administratrix and was then pending in the United States District Court for the Southern District of Alabama. The petition suggests that the administratrix may not be the lawful widow of the decedent because he was married to the petitioner's mother prior to his subsequent marriage to the administratrix, and no divorce decree had ever been obtained by either party prior to decedent's death. The petition prays that the court inquire into the question of whether the administratrix was the lawful wife of the decedent at the time of his death; asking that the administratrix' bond be increased to an appropriate amount commensurate with the value of the claim then in litigation; and, for such other orders in the premises as may be necessary to protect the petitioner's interest in the estate.

In response to the foregoing petition two hearings were held before the court at which time testimony and evidence were adduced by the parties. From an examination of the transcript of the proceedings we conclude that the primary thrust of the trial was directed toward the issue of whether at the time of his death the decedent, Carl S. Yohn, was lawfully married to Myrtle Paul Yohn with whom he entered into a ceremonial marriage in the State of Mississippi in 1955 or to the administratrix, Margaret Marie Yohn, with whom he contracted a ceremonial marriage in the State of Alabama in 1966. Such conclusion appears self-evident even though the alleged first wife, Myrtle, was not made a party to the proceeding and the alleged second wife, Margaret Marie, failed to file any answer to the petition claiming to be the lawful widow of the decedent. The alleged first wife did appear at the trial and testified as a witness on behalf of the petitioner in which she asserted her status as the lawful widow of the decedent and specifically requested the court to adjudicate this issue. Likewise, the alleged second wife of the decedent appeared and testified in her own behalf in which she asserted that she was the lawful wife of the decedent at the time of his death by virtue of her ceremonial marriage to him in 1966. Although the final order appealed fails to adjudicate with any degree of specificity the exact identity of the claimant whom the court found to be the lawful wife of the decedent at the time of his death, both parties before this court agree that the inescapable import of the order which was rendered must be construed to hold, at least by inference, that the administratrix with whom the decedent contracted a second ceremonial marriage was his lawful widow entitled to share in the assets of the estate. Since neither the insufficiency of pleadings nor the unresponsiveness of the order to the issues presented for decision appears to have prejudiced the interest of any of the parties to this proceeding, and each of the parties is in agreement as to the legal effect of the final order here reviewed and the issue presented for this court's decision, we will concern ourselves only with the merits of the cause and proceed to determine whether the order appealed is supported by competent evidence and accords with established principles of law.

The uncontradicted proof established that the decedent and Myrtle Paul entered into a ceremonial marriage in the State of Mississippi in 1955. The wife testified that she and the decedent cohabited together as man and wife for a period of approximately two years during which there was born of their marriage the petitioner, Jackie Yohn, now a minor 12 years of age. In 1957 she and the child moved to the west coast of the United States where she has resided since the date of her separation. She testified that at no time subsequent to her marriage to decedent did she secure a divorce from him, nor did she have any knowledge of any divorce having been secured by him against her. The evidence adduced by petitioner established that there was no record of a divorce having been granted decedent against Myrtle in either the Court of Record or Circuit Court of Escambia County where he lived subsequent to their separation. A certificate by the Bureau of Vital Statistics of the State Board of Health of Florida discloses no record in that office of any divorce having been secured by the decedent against his first wife. Myrtle testified that she...