
    Jenkins v. Jenkins et al.
    
      (Decided May 9, 1928.)
    
      Mr. W. J. Mead and Messrs. McIntosh & Garrahan, for plaintiff.
    
      Messrs. Culbert £ Gulbert and Mr. G. G. Sheffler, for defendants.
   Richards, J.

Alfred Jenkins, a resident of San-dusky county, died intestate on January 4, 1926, the owner in fee simple of 35 acres of land situated in the county. This action was commenced on February 2,1927, for the purpose of procuring a partition of the real estate left by him. From the decree of the court of common pleas an appeal has been taken to this court.

The plaintiff, Alma Jenkins, and the defendants, Fred Jenkins and Hinda Stewart, claim to be children of Alfred Jenkins, and his only heirs at law, and the defendant Alma Diehl Jenkins claims to be his widow, and entitled to dower in the premises, and also claims that she furnished a portion of the purchase money, and that the decedent held the title in trust for her.

It appears from the evidence in this, case that Alfred Jenkins and Lista Jenkins, who were colored persons and slaves, lived together as husband and wife in the state of Virginia during and after the Civil War. On 'February 27, 1866, while they were so living together, the General Assembly of Virginia enacted a statute to legalize the marriages of colored persons cohabiting as husband and wife; and the second section of that act provides, in substance, that, where colored persons before its passage shall have agreed to occupy the relation to each other of husband and wife, and are cohabiting together as such, whether the rites of marriage shall have been celebrated between them or not, shall be deemed to be husband and wife, and be entitled to all the rights and privileges of that relation in liko manner as if they had been duly married by law. Under and by virtue of the provisions of that act, the decedent Alfred Jenkins and Lista Jenkins became, in law and in fact, husband and wife. Six children were born to them, three of whom died without leaving issue, and the other three are the plaintiff, Alma Jenkins, and the defendants, Fred Jenkins and Hinda Stewart, and as legitimate children of the decedent each is entitled to an undivided one-third interest in the real estate involved in this action.

The evidence shows that in April, 1895, the decedent abandoned his wife, Lista Jenkins, and left Virginia with the defendant now known as Alma Diehl Jenkins, a white woman, but then known as Alma Diehl and the wife of George S. Diehl. They came to Ohio, and lived and cohabited together as husband and wife for more than 30 years, up to the time of the death of Alfred Jenkins on January 4, 1926, although no children were born to them.

In 1895, not long after they left Virginia, George S. Diehl secured a divorce from his wife, Alma Diehl. Lista Jenkins, the former wife of Alfred J enkins, died in Virginia in the year 1923. The decedent Alfred Jenkins and Alma Diehl Jenkins, for more than 30 years, were universally known and recognized and believed by tbeir neighbors and friends to be husband and wife. They purchased the land involved in this action, the deed being taken in the name of Alfred Jenkins, and they worked the land together in an endeavor to complete the payments, the defendant Alma Diehl Jenkins doing a man’s work on the land. There is some testimony tending to show an agreement on their part to become husband and wife, but an impediment existed preventing a lawful marriage, in that Lista Jenkins was still living until the year 1923. The divorce granted George S. Diehl in 1895 of course removed the impediment theretofore existing by reason of the marriage between him and Alma Diehl, now Alma Diehl Jenkins.

In view of the facts and circumstances shown in this case, establishing the long-continued relations between the parties, showing that they resided and cohabited together as husband and wife, and held themselves out to their friends and neighbors as such, which continued down to the time of the death of Alfred Jenkins, and until after all impediments to their marriage had been removed, and in view of the added fact that there is testimony tending to show an agreement in the present tense to become husband and wife, this court is forced to the conclusion that a common-law marriage existed between them, and that Alma Diehl Jenkins is the widow, and entitled to dower in the premises involved in this action. This conclusion is in line with the holding of the Supreme Court in Johnson v. Wolford, 117 Ohio St., 136, 157 N. E., 385; and with the holding in Dirion v. Brewer, Admr., 20 Ohio App., 298, 151 N. E., 818.

The evidence fails to disclose clearly and convincingly that the decedent held the title in trust for Alma Diehl Jenkins, and that claim made by her is disallowed. She has paid certain claims against the estate, such as doctor’s bill, funeral expenses, etc., for which she is entitled to be reimbursed.

The defendant Gr. C. Sheffler, as administrator of Alfred Jenkins, deceased, is entitled to an order of sale of the premises for the payment of debts of the decedent. A decree may be drawn in accordance with this opinion.

Decree accordingly.

Williams and Lloyd, JJ., concur.  