
    WOODS, ESTATE OF, In Re
    Probate Court, Marion Co
    No 14580.
    Decided June 2, 1941
    Garter M. Patton, Marion, for Wilbur iE. Woods.
    J. C. A. Arter, Marion, for Leona Woods.
   OPINION

By GAST, J.

This matter comes before this Court on the application of Leona Woods for letters of administration in the estate of Dee Edwin Woods, deceased, late of this county.

The application of Leona Woods is based on the claim that she is the surviving spouse of the decedent and therefore has priority for appointment under the provisions of §10509-3 GC.

Objection to the appointment is raised by Wilbur E. Woods, a brother of decedent, on the ground that Leona Woods was never legally married to the decedent, and that she is therefore not his widow. Wilbur E. Woods also filed application for letters of administration.

It is conceded that the claim of Leona Woods as widow is based on a common law marriage whose validity is being attacked by decedent’s brother. For this Court to grant letters of administration to Leona Woods at this time would in effect be accepting the validity of the marriage which it is obvious will be the ultimate issue to be decided.

It is not the purpose of this Court to now pass upon the validity of this marriage, nor to reiterate the general condemnation of this form of marriage, nor to trace the Ohio cases on this subject which has . already been accomplished so well. Moynahan, Common Law Marriages in Ohio, 5 O. S. L. J. 26, 175.

Even if it be conceded that Leona Woods may ultimately establish a valid common law marriage with the decedent, it is nevertheless the opinion of this Court that letters of administration should not be granted to her.

Sec. 10509-3 GC, which sets forth the order of priority in the granting of letters contains the following language:

“If there are no persons so entitled to administration, or if they are incompetent, or for any reason unsuitable commit the administration to some suitable person * * * ”

The surviving spouse of a common law marriage is not a suitable person to be granted letters of administration. In re Estate of Speeler, 22 Abs 223, 6 OO 529 (Cuyahoga County Probate Court, 1936) approved.

The application of Leona Woods will therefore be denied. The application of Wilbur E, Woods will be granted.  