
    In re Estate of Partlow.
    (No. 24243
    Decided November 27, 1957.)
    
      Mr. Sidney M. Cornrich and Mr. Morton D. Barrisch, for appellee.
    
      Mr. Jerome W. Moss, for appellant.
   Per Curiam.

Appellant filed a motion in Prohate Court to vacate the appointment of Sidney C. Partlow as administrator of the estate of Adeline Partlow (or Aileen Knight, as deceased is referred to by appellant), claiming to be the husband of the deceased, and as such is entitled to be appointed administrator of her estate. Sidney C. Partlow is the brother of decedent.

The issue presented to this court by the parties is whether, in contemplation of law, after the disability to a common-law marriage is removed (in this case by appellant’s divorce in 1946) the parties are to be considered as husband and wife. Certainly the evidence shows that appellant and decedent continued to live together and to hold themselves out to the community as husband and wife after the disability was removed.

There being no evidence in the record to show that the decedent was under a disability to enter into a common-law marriage and appellant’s disability to marry having been removed by a divorce in 1946, there is ample evidence in the record to establish all the elements of a common-law marriage between appellant and decedent, including an agreement to marry in praesenti under the test set down by the Supreme Court in Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304, in paragraph two of the syllabus which reads as follows:

“2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

At page 167, the court said:

“* * * This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement in praesenti may be inferred.” (Emphasis added.)

This court is unanimously of the opinion that the evidence of appellant established a common-law marriage and that, therefore, in entering judgment for the appellee at the close of appellant’s evidence, the court erred, because such judgment was manifestly against the weight of the evidence; and that in view of the evidence and the pronouncement of the Supreme Court in Markley v. Hudson, supra (143 Ohio St., 163), it was error of law prejudicial to the rights of the appellant to enter judgment at the close of plaintiff’s case.

Therefore, in view of the fact that the court did not hear the whole case, the cause is remanded to the Probate Court with instructions to overrule the motion at the close of the plaintiff’s case and for further proceedings according to law.

Judgment accordingly,

Skeel, P. J., Hurd and Kovachy, JJ., concur.  