Decided June 14, 1939.
Husband and wife — Common-law marriage — Essential elements to be shown by clear and convincing evidence — Proof of agreement in praesenti necessary.
APPEAL from the Court of Appeals of Lucas county.
This cause originated in the Probate Court of Lucas county. Anna Redman died intestate, December 9, 1931, leaving a small estate composed entirely of personalty. She left no known heirs and, after an administration of her estate, the balance left in the hands of the administrator was transferred to a trust estate, of which The Ohio Citizens Trust Company was appointed trustee on July 22, 1933.
On February 9, 1938, Harry Hiland filed a motion in this estate asking the court to declare him the common-law husband of Anna Redman. Attached to this motion were various affidavits supporting his contention that he was the common-law husband. This motion was heard and overruled by the Probate Court. Harry Hiland then appealed to the Common Pleas Court of Lucas county from this judgment overruling his motion. The case was heard on the petition on appeal, the original papers and pleadings, the transcript of the docket and journal entries of the Probate Court of Lucas county, and upon the evidence. The Court of Common Pleas, on the 12th day of December, 1938, dismissed the appeal. Notice of appeal was then given and this judgment of the Common Pleas Court was appealed to the Court of Appeals of Lucas county. On January 23, 1939, the judgment of the Court of Common Pleas was reversed with the following words:
"And thereupon this court, being fully advised in the premises, finding that said court committed error prejudicial to the appellant herein in overruling the motion of appellant therein and rendering and entering judgment in favor of the appellee herein, hereby orders and adjudges that said ruling and judgment of said Court of Common Pleas be and hereby is reversed and this court, proceeding to render the judgment that said court should have rendered, orders and adjudges that said motion of appellant be and hereby is granted and that it be and is hereby found and adjudged that Harry Hiland and Anna Redman Hiland were husband and wife at the time of the decease of said Anna Redman Hiland and that said Harry Hiland is the relict of said Anna Redman Hiland, deceased, and that this cause be and the same hereby is remanded to the Court of Common Pleas for execution of this judgment, to all of which appellee duly objects and excepts."
On appeal to the Common Pleas Court, evidence was introduced on behalf of Harry Hiland to establish that he was the common-law husband of the deceased Anna Redman. Numerous witnesses testified that Harry Hiland and Anna Redman had lived together for a period of about five years before her death and the record, too, shows that in the community in which they resided during this period they had been generally accepted as husband and wife. He had paid a considerable portion of their living expenses and she had used his name and had gone among their, friends under the name of Hiland.
Harry Hiland testified quite fully as to the time, place and manner in which their cohabitation began. He testified as follows:
"Q. Did you know the deceased Anna Redman, alias Anna Hiland? A. Yes.
"Q. When did you meet her? A. I think it was — I am pretty sure it was June, 1926.
"Q. Was she a single woman? A. Yes.
"Q. Were you a single man? A. Yes.
"Q. Just state to the court in your own words what happened? A. Well, she came where I was staying and we went to living together as man and wife.
"Q. You lived with her until she died? A. Yes.
"Q. As man and wife? A. Yes, until 1931.
"Q. Did you all agree to live together as common-law man and wife?
"Miss Connell: I object to the question.
"Q. Just state to the court in your own words what happened? A. We agreed to live as man and wife.
"The Court: What was said; what did you say and what did she say, not what you agreed. That is a conclusion.
"A. Well, we agreed to live together.
"Q. What did you say and what did she say about that? A. She said she would do it and so did I. We said we would live together as man and wife. That is all.
"Q. Did you ever discuss any marriage between you and her? A. We talked of marriage but not for her and I.
"The Court: Were you going to marry someone else?
"Witness: No. I was not.
"Q. Do you mean to tell the court —
"Miss Connell: I object to any leading questions. Let him tell what he means.
"Mr. Oats: He stated they talked about marrying but not between them.
"A. Not for her and I to get married. We talked about marriage the same as anybody else would talk about marriage."
And on cross-examination, Harry Hiland testified as to the manner the relationship began, as follows:
"Q. When Mrs. Redman came to this place where were you rooming in June, 1926, you were rooming at a certain place, as I understand? A. Yes.
"Q. And Mrs. Redman came there? A. Yes.
"Q. You had never seen her prior to that time? A. No.
"Q. What occurred? A. Well, we were just talking and she said she liked me and then I told her I liked her.
"Q. That was one night in June, 1926, she came to your rooming house and said she liked you, is that right? A. Yes.
"Q. You never saw her prior to that time? A. No.
"Q. Where were you at that time? A. Back in my room. "Q. Did she have her belongings with her? A. No. She did not.
"Q. She walked in, walked into your room and said I like you and you said you liked her? A. I like her.
"Q. That is the first time you ever seen her? A. Yes.
"Q. And then she stayed all night with you? A. Yes.
"Q. Just continued to stay there? A. Yes."
This is substantially all the evidence which was produced to show the manner in which this relationship began and it was uncontradicted.
The prosecuting attorney of Lucas county, on March 7, 1938, filed a motion for an order by the Probate Court requesting the trustee to show cause why this estate should not escheat to the state of Ohio. This motion was filed after the motion of Harry Hiland had been overruled and the prosecuting attorney has taken an adverse position to Hiland throughout this case. The motion of the prosecuting attorney to date has never been heard and the prosecuting attorney does not, by the record, show that he is entitled to appear in the case. However, no objection has been raised on behalf of Harry Hiland any place in the proceeding to the presence of the prosecuting attorney in the matter.
A notice of appeal was filed by the prosecuting attorney from the judgment of the Court of Appeals and, since a decision on the original motion of Harry Hiland will be determinative of the prosecuting attorney's later motion in the Probate Court, and since, further, no objection has been made by the petitioner, Harry Hiland, this court granted a motion to require the Court of Appeals to certify its record.
Mr. William Oats, for appellee.
Mr. Thomas J. O'Connor, prosecuting attorney, and Mrs. Geraldine F. Macelwane, for appellant.
The sole question presented in this case is whether there was a common-law marriage between the parties. The essential elements of a common-law marriage in this state were announced in the case of Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832. The following essential requirements for such a marriage are stated in the syllabus of that case:
"An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father."
So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons. In the Umbenhower case, supra, the legitimacy of a child was involved and was an important factor in the decision of that case. Even in such cases, the essential elements of such marriage must be established by the degree of proof stated.
In this case, the evidence of the petitioner proved that the parties had cohabited and that they were recognized by those among whom they lived as man and wife. However, in addition to this, it is essential to show an agreement in praesenti to become husband and wife, to establish a marriage at common law. No such agreement or intention of these parties was shown to exist when they assumed their relationship, as is required. No statement was made by either of them that they were becoming husband and wife and that they intended to assume a relationship of marriage. On the contrary, they agreed that marriage was not for them and that they did not desire that status. Their conversation at the time they assumed their relationship cannot be construed to constitute a contract of marriage, and their living together was not, therefore, pursuant to any marriage contract. Their action was no more than the most casual beginning of a state of fornication. There is complete failure of proof of an agreement in praesenti to enter into the relationship of husband and wife. The petitioner, therefore, failed to establish a relationship as common-law husband of the deceased. So long as common-law marriage has any recognition, the requirements as to proof must be rigidly applied and enforced.
The Probate Court and the Common Pleas Court were right in their finding and conclusions. The judgment of the Court of Appeals is accordingly reversed.
WRYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and MATTHIAS, JJ., concur.