
    In re Estate of Hammonds.
    (No. 3320
    Decided June 29, 1973.)
    Common Pleas Court of Adams County, Probate Division.
    
      Mr. M. M. Carlisle, for applicant Jo Anne Hammonds.
    
      Mr. Charles H. Wilson, for applicant Wilbur M. Ham-monds.
   Davis, J.

This matter is before the court on two applications for appointment of an administrator for the estate of Jack Hammonds, deceased. The first application was filed by Jo Anne Hammonds, mother of the three minor children of Jack Hammonds, deceased, and the second application for appointment of administrator is filed by Wilbur M. Hammonds, father of the deceased.

Jack Hammonds obtained a divorce from Jo Anne Hammonds in Scioto County Common Pleas Court on May 16,1972, at which time he was granted custody of the minor children. The mother, Jo Anne Hammonds, claims a preferred right to be administratis of the estate of the deceased by virtue of being the common-law wife of the deceased.

R. C. 2113.06 is as follows:

“Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:
“ (A) To the surviving spouse of the deceased, if resident of the state;
“ (B) To one of the next of kin of the deceased, resident of the county.;
“(C) To one of the next of kin of the deceased, resident of the state;
“If the persons entitled to administer the estate fail to take or renounce such administration voluntarily, they shall be cited by the Probate Court for that purpose, if resident within the county.
“If there are no persons entitled to administration, or if they are for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right to priority shall be lost and the court shall commit the administration to some suitable person who is a resident of the county. Such person may be a creditor of the estate.
“This section applies to the appointment of an administrator de bonis non.”

This section clearly gives a right of priority to the surviving spouse of the deceased, if resident of the state to administer the estate. Applicant Jo Anne Hammonds is a resident of the state of Ohio.

According to the above statute, however, a right to priority shall be lost if the person entitled for any reason is unsuitable for the discharge of the trust or without sufficient cause neglects to apply within a reasonable time.

The court in In re Estate of Woods (1941), 34 Ohio Law Abs. 169, being presented with a similar conflict of applications for administration refused to pass upon the validity of the alleged common-law marriage and citing In re Estate of Speeler (1936), 22 Ohio Law Abs. 223, denied the application of the person claiming to be the surviving spouse of a common-law marriage as not being a suitable person to administer the estate.

In re Estate of Woods, supra, stands for two propositions: (1) The court will not decide the validity of an alleged common-law marriage upon the application of the alleged surviving spouse for letters of administration, and (2) The surviving spouse of a common-law marriage is not a suitable person to be granted letters of administration.

Neither proposition is subscribed to by this court. The prompt and orderly administration of an estate requires a judicial determination of the validity of an alleged common-law marriage at the first instance it is called to the court’s attention. Not only does such a hearing determine whether or not there is a surviving spouse to share in the distribution of the estate, but it also determines many valuable statutory rights such as: the widow’s year’s allowance, selection of property exempt from administration, right to remain in the mansion house, right to purchase certain property of the estate as well as a right of priority to administer the estate.

It may be claimed that a hearing on an application for letters of administration is not an adversary proceeding such as an action to determine heirship or an action for a declaratory judgment where all interested parties are summoned before the court as defendants. These actions are not exclusive. It is true that pursuant to E. C. 2113.07 only persons resident of the county entitled to administer the estate are to be cited in a proceeding upon an application for appointment of an administrator. There may be heirs not resident of the county whose interest in the estate of the deceased will be adversely affected by a determination that a person is the surviving spouse of a common-law marriage and, in addition to being appointed administra-trix, will receive a substantial share of the estate.

It has been decided in Ohio that the Probate Court has jurisdiction to determine the issue of a common-law marriage as an incident to a hearing upon exceptions to an inventory or by attacking the account and order of distribution. In re Estate of Soeder (1966), 7 Ohio App. 2d 271. The premise of the Soeder decision is R. C. 2101.24 which states:

“The Probate Court shall bave plenary power at law and in equity fully to dispose of any matter properly before tbe court, unless tbe power is expressly otherwise limited or denied by statute.”

On tbe same premise tbis court bolds in tbe case at bar that as an incident to a bearing upon an application for appointment of an administrator pursuant to R. C. 2113.06 tbe Probate Court bas jurisdiction to determine tbe issue of common-law marriage. (In re Estate of Soeder, 7 Ohio App. 2d 271, followed.)

One word of caution should be noted. Tbe court must see that all parties, who bave an interest in tbe estate of deceased and may be adversely affected by tbe court’s decision, bave adequate opportunity to be represented in tbe proceeding. Tbe interest of tbe minor children in tbe case at bar were adequately represented.

Tbe second proposition that the surviving spouse of a common-law marriage is not a suitable person to be granted letters of administration is in contravention of Ohio law. Tbe provisions of R. C. 2113.06, supra, are mandatory. In re Estate of Golembiewske (1946), 146 Ohio St. 551; In re Estate of Vickers (1959), 110 Ohio App. 499. A surviving spouse, resident of tbe state, bas a right to be appointed administratrix. The language of R. C. 2113.06 does not exclude tbe surviving spouse of a common-law marriage. It must therefore necessarily include such common-law surviving spouse.

In re Estate of Woods, supra, declares that even if ultimately tbe surviving spouse can establish tbe validity of her common-law marriage she is nevertheless not a suitable person to be granted letters of administration. Why should she he entitled to some rights as a surviving spouse, but not all? How can she be entitled to share in the estate bnt not entitled to administer it? This is not to say she must be appointed if she is not suitable to discharge the trust, but the court in its sound discretion must find her unsuitable, not automatically exclude her because she is a common-law widow.

In re Estate of Woods, supra, justifies its position by approving In re Estate of Speeler, supra (22 Ohio Law Abs. 223). A thorough examination of the Speeler case reveals both an excellent analysis and denunciation of common-law marriage. Disapproval of common-law marriage in general, though, does not transcend the existing law of the state of Ohio which recognizes common-law marriages and by statute grants the surviving spouse of a deceased person certain rights including the right of priority to administer the estate.

This court concludes the surviving spouse of a common-law marriage may be a suitable person under the provision of R. 0. 2113.06 to be granted letters of administration. (In re Estate of Woods, 34 Ohio Law Abs. 169, not followed.)

Turning to the issue of the existence of a common-law marriage in the case at hand, we find the elements necessary to prove a common-law marriage are: (1) a mutual agreement to marry in praesenti, made by parties competent to marry; (2) accompanied and followed by cohabitation as husband and wife; (3) a holding of themselves out as husband and wife in the community in which they move; and (4) being regarded as husband and wife in the community in which they move. A long list of Ohio authorities have established the essential elements of the common-law marriage. Among the most frequently cited are: In re Estate of Redman (1939), 135 Ohio St. 554; Marhley v. Hudson (1944), 143 Ohio St. 163; Umbenhower v. Labus (1909), 12 C. C. (N. S.) 289, affirmed, 85 Ohio St. 238; Carmichael v. State (1861), 12 Ohio St. 563; Duncan v. Duncan (1859), 10 Ohio St. 181; In re Estate of Speeler, supra; In re Estate of Soeder, supra (7 Ohio App. 2d 271); Etter v. Von Aschen (1959), 82 Ohio Laws Abs. 421; Borton v. Burns (1967), 11 Ohio Misc. 200.

Each of the essential elements must be proved by clear and convincing evidence. In re Estate of Soeder, supra.

In the case at bar, applicant Jo Anne Hammonds and the deceased, Jack Hammonds, had been legally married and had three children. He obtained a divorce from her in Scioto County May 16,1972, and he was granted custody of the minor chillren. He lived continuously with another woman the last four months of 1972. About Christmas time 1972 his attentions returned to his former wife, Jo Anne Hammonds. On February 5, 1973, they obtained a license' to remarry from the Adams County Probate Court. This license was valid for 60 days and was still valid at the date of the death of Jack Hammonds, March 16, 1973. The marriage ceremony was never performed by anyone authorized by law to do so and of course no return was made to the Probate Court of the performance of the marriage ceremony. The parties did not seek out a minister of the gospel or other authorized person to perform the marriage ceremony. Both parties knew the requirement of the law with respect to the performance of the marriage ceremony by one authorized to conduct it, having been married to each other before.

There is some evidence that about the middle of February, 1973, the parties overtly exchanged vows in the presence of witnesses indicating an agreement to marry in praesenti. Other evidence showed that the deceased stated after the so called common-law ceremony was performed that he was going to remarry Jo Anne Hammonds, clearly indicating the future tense and, in effect, that he himself did not recognize the existence of the common-law marriage.

A valid common-law marriage is based upon contract and requires that the agreement be in the present tense not in the future and not merely a temporary arrangement, but an agreement for life. Some evidence existed to indicate cohabitation as husband and wife and a holding out in the community as husband and wife, but certainly the parties were not generally regarded to be husband and wife in the community. Some evidence of all the elements of a common-law marriage was presented, but it has fallen far short of the clear and convincing proof necessary to establish a marriage relationship.

The burden of proving a common-law marriage lies with the person claiming its existence. Public policy generally condemns common-law marriages and does not accord them any favor. The statutes of Ohio contain definite requirements and prescribe rigid standards to which applicants for a marriage license must conform, so it is not unusual to find the courts of Ohio demanding that all the essential elements of common-law marriages be proven by clear and convincing evidence before according them equal legal status. Failing in this, no common-law marriage will be declared to exist.

This court concludes that Jo Anne Hammonds and Jack Hammonds were not common-law husband and Avife at the time of the death of Jack Hammonds on March 16, 1973.

She, not being the surviving spouse of the deceased, but having been divorced from the deceased, has lost her right to priority to administer the estate of her former husband. Hudson v. Owens (1928), 28 Ohio Law Rep. 221; annotation 34 A. L. R. 2d 876.

For the reasons stated herein, the application of Jo Anne Hammonds will be denied. There being no other persons entitled by right of priority to administer the estate, the application of Wilbur M. Hammonds, father of the deceased, whom the court finds to be a suitable person, resident of the county will be granted.

Judgment accordingly. 
      
       Judge Richard L. Pavis of Highland County, sitting by assignment.
     