HAWKINS v. HITCHCOCK

HAWKINS v. HITCHCOCK
1961 OK 87
365 P.2d 971
Case Number: 39190
Decided: 04/11/1961
Supreme Court of Oklahoma

MABEL ROSENWINKLE HAWKINS, PLAINTIFF IN ERROR,
v.
CATHERINE HITCHCOCK, ADMINISTRATRIX, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 1. Where the right of a party to the relief sought is dependent upon a marriage, the burden is upon such party to establish the marriage.
2. The issue of the existence of a lawful marriage is one of fact.
3. An appeal involving the appointment of an administratrix is equitable in nature and the burden is upon the party appealing in such a proceeding to show that the findings and judgment of the trial court are clearly against the weight of the evidence.

Appeal from the District Court of Pittsburg County; W.J. Lackey, Judge.

Proceeding by defendant in error in County Court as daughter and alleged sole heir as law of decedent, for letters of administration of his estate. Plaintiff in error filed a contest to proceeding asserting that as surviving spouse she had preferential right to letters of administration. County Court found that plaintiff in error was not decedent's surviving spouse and therefore found for defendant in error. Plaintiff in error appealed to District Court. Following trial de novo in latter court, said court found for defendant in error and plaintiff in error appeals. Affirmed.

Claud Briggs, Carrol Womack, Oklahoma City, for plaintiff in error.

W.S. Horton, W.J. Hulsey, McAlester, for defendant in error.

BERRY, Justice.

¶1 On April 27, 1959, Claud Hawkins, hereafter referred to as "decedent", died intestate a resident of Pittsburg County, Oklahoma.

¶2 On May 1, 1959, defendant in error, Catherine Hitchcock, hereafter referred to as "petitioner", filed in the County Court of Pittsburg County a petition for letters of administration of decedent's estate. In so far as material to the issues presented by this appeal, she alleged in said petition that she was the daughter and sole heir at law of decedent and as such had a preferential right of appointment as administratrix of decedent's estate.

¶3 On May 15, 1959, plaintiff in error, Mabel Rosenwinkle Hawkins, hereafter referred to as "contestant" or by name, filed a contest to the above referred-to petition in which she alleged in substance that she was the surviving spouse of decedent and as such was entitled to letters of administration of his estate.

¶4 Following a hearing on the contest in the County Court, said Court held in substance that contestant had failed to prove that she was the surviving spouse of decedent; that letters of administration should therefore issue to petitioner. Contestant perfected an appeal to the District Court, which Court, following a trial de novo, in effect affirmed the judgment of the County Court. From the adverse judgment of the District Court, contestant perfected this appeal.

¶5 The sole issue presented by this appeal is whether the findings and judgment of the District Court that contestant was never married to decedent are clearly against the weight of the evidence.

¶6 Decedent and contestant occupied the same residence building in McAlester, Oklahoma, from 1952 to date of testator's death. Petitioner contends that contestant's relationship toward decedent was at all times that of housekeeper. Contestant contends that she and decedent were married in Haskell County, Oklahoma, January 3, 1953; that following the marriage she and decedent lived as husband and wife in the home in McAlester which they had occupied prior to the marriage; that she had possession of the marriage license which evidenced her marriage to decedent; that same was placed in a drawer of decedent's desk; that it was removed from the desk and that she was unable to find it.

¶7 The pertinent evidence bearing on contestant's contention is this: Contestant caused to be introduced in evidence a certified copy of an alleged marriage license issued by the Court Clerk of Haskell County, Oklahoma, January 3, 1953, to Claude Hawkins, age 69, of McAlester and Mabel Rosenwinkle, age 63, of McAlester. Complainant was known as Mabel Rosenwinkle for several years prior to the referred to date. The "Certificate of Marriage", which appeared on the marriage license form, showed that Claude Hawkins and Mabel Rosenwinkle were married by the County Judge of Haskell County on January 3, 1953. The persons shown as witnesses to the marriage were Floyd Claunch and Brooks Weir. It is indicated on the referred-to instrument that same was recorded January 15, 1953 in Book 15, p. 193 of the Marriage Record of the Court Clerk of Haskell County.

¶8 The Court Clerk of Haskell County who certified to the copy of the marriage license and certificate of marriage testified that he recalled preparing and certifying thereto. The Court Clerk of said county, as of date the alleged marriage license was issued, testified that he recalled issuing the marriage license; that the marriage was performed in his office; that he remembered the marriage because he procured the witnesses and remembered the name "Rosenwinkle". He identified contestant as being one of the parties to whom the marriage license was issued. Floyd Claunch, one of the alleged witnesses to the marriage, testified that he witnessed the marriage; that one of the reasons he remembered the marriage was because he thought the name "Rosenwinkle" was the "funniest name (he) had ever heard"; that complainant showed him a photograph of a man whom she identified as decedent and that he was reasonably sure that said man was the man who married contestant. An attorney testified that he called at the Office of the Court Clerk and obtained the certified copy of the marriage license.

¶9 Contestant introduced evidence that on one occasion following the marriage, decedent introduced her as his wife.

¶10 The pertinent evidence bearing on petitioner's contentions is this: The book in which the alleged marriage license was recorded disappeared from the Court Clerk's office a few days after the alleged certified copy of the marriage license was issued; that the book was never found; that receipts were issued for marriage-license fees; that all such receipts which were issued on January 3, 1953, were accounted for and that none was issued to decedent and contestant; that the certified copy of the marriage license shows that an order dispensing with a blood test was made but the records of the Court Clerk failed to show that such an order was ever made; that when the applicants for a marriage license were "pretty old people" the orders of the County Judge dispensing with blood tests were, on occasion, oral; that one of the persons who applied for a marriage license in Haskell County on January 3, 1953, produced the original marriage license issued pursuant to said application, which license showed that it was recorded in Marriage Book 15, p. 193 (this is the book and page that the license in controversy was allegedly recorded); that on two occasions following the alleged marriage, contestant testified in court proceedings and gave her name as Mabel Rosenwinkle; that decedent, following the marriage, executed conveyances as a single man (he also followed this practice while married to petitioner's mother); that following the alleged marriage he conveyed by warranty deed certain property to Mabel Rosenwinkle and executed the deed as a single man; that he stated to the person who drafted the deed that the purpose of the deed was to compensate contestant for caring for him and that he stated further that she was not his wife; that following the alleged marriage, contestant conveyed property and executed the deed as a widow; that contestant purchased an automobile following alleged marriage and directed that the certificate of title be issued to Mabel Rosenwinkle; that contestant, following the alleged marriage, stated that she was not decedent's wife, and that decedent made like statements; that in his income tax returns, decedent showed that he was a single man; that in those years in which decedent's return showed net income he claimed contestant as a dependent; that prior to trial of the instant case, contestant offered $500 to an accountant who had prepared decedent's returns for several years prior to his death and who was then preparing decedent's 1958 income tax return, in consideration for showing contestant as decedent's wife on said return, which offer was rejected; that decedent spelled his first name "Claud" and that same name was spelled "Claud" in the certified copy of the marriage license.

¶11 Contestant contends that the evidence shows that decedent and contestant were married and that the burden therefore rested on petitioner to prove that the marriage was illegal and void. Contestant cites D.P. Greenwood Trucking Co. et al. v. State Industrial Commission et al., Okl. 271 P.2d 339, and Hill et al. v. Jones, 180 Okl. 330, 69 P.2d 324, as sustaining said contention. Contestant asserts that petitioner failed to sustain the burden so cast upon her.

¶12 The cited cases are not in point. The issue presented by this case is whether contestant, as the surviving spouse of decedent, was entitled to letters of administration over his estate.

¶13 In Impson v. Kelley et al., 195 Okl. 666, 163 P.2d 984, we stated in the second paragraph of the syllabus that "Where the right of a party to the relief sought is dependent upon a so-called common-law marriage, the burden is upon such party to establish the facts essential to constitute such marriage." The quoted rule is applicable where relief is sought upon a ceremonial marriage that is questioned. See also In re Trope's Estate, 190 Okl. 453, 124 P.2d 733, where the quoted rule was applied to a person seeking appointment as administratrix of her alleged husband's estate.

¶14 We stated in the third paragraph of the syllabus to Harjo et al. v. Hall et al., 183 Okl. 15, 79 P.2d 586, 587, that "The issue of the existence of a lawful marriage, either by ceremony or by common law is one of fact properly triable by a jury."

¶15 We have, therefore, held that a proceeding involving the appointment of a personal representative in a probate proceeding is equitable in nature and that in such cases the burden is upon the party appealing from the findings and judgment of the trial court to show that same are clearly against the weight of the evidence. Hadwiger v. Melkus, Okl., 338 P.2d 1098, 73 A.L.R.2d 454, and Franklin v. Beard, 171 Okl. 254, 42 P.2d 835.

¶16 In the instant case, the evidence was in conflict as to whether or not the decedent and the contestant were married. In our opinion, the finding of the trial court to the effect that said parties were not married is not clearly against the weight of the evidence, and for said reason we are not at liberty to reverse the judgment of the trial court based on said finding.

¶17 Affirmed.

¶18 WILLIAMS C.J., BLACKBIRD, V.C.J., and HALLEY, JOHNSON, JACKSON and IRWIN, JJ., concur.