Affirming.
J. Wat Brown died intestate, a resident of Boyle County, Ky., on March 18, 1945. The above consolidated *Page 798 actions were filed in the Boyle Circuit Court as separate suits to determine legal questions arising from his death. The first suit listed above was filed by his duly appointed administrator against his heirs at law to settle his estate and sell his personal property for distribution amongst those entitled thereto. All his known heirs were made defendants and, in addition thereto, Iva Brown, who claimed to be the widow of decedent, was made a defendant and called on to set up any claim she may have to the personal property of decedent. The personal property involved in this suit had an appraised value of $15,687.07 exclusive of certain articles appraised at $1,020 which were claimed by said Iva Brown personally as not belonging to the estate of decedent. The administrator asked for a determination of the question of whether Iva Brown was entitled to that proportion of the personal property to which she would be entitled as the surviving widow of decedent and whether she was exclusive owner of the articles of personal property appraised at $1,020. Iva Brown filed her answer and counterclaim in this suit and all issues were made up by proper pleading.
The other suit listed above was a suit by one of the heirs-at-law of J. Wat Brown against the other heirs-at-law to sell three tracts of land in Boyle and Casey Counties, Ky., belonging to decedent at the time of his death, for the purpose of dividing the proceeds among his heirs-at-law in the proportion to which each was entitled. Iva Brown was made a defendant in this suit because she was claiming to have an interest therein as the surviving widow of decedent. The court was asked to adjudge that she had no interest therein. Iva Brown filed her answer and counterclaim setting up her claim to a dower interest in the property as the wife of decedent and all issues were made up by proper pleading. The case proceeded to judgment and the property was by agreement ordered sold with the question of the right of Iva Brown to participate in the distribution of the proceeds reserved for final adjudication.
We are not concerned with the above two suits except as they relate to the questions involved in this appeal and will consider them no further except to determine the rights of Iva Brown to participate in the distribution of the proceeds in each case. *Page 799
In the judgment of the lower court the first of these questions was answered in the affirmative and the second in the negative. From that judgment this appeal is prosecuted, by appellants on the first question and by appellees on cross appeal on the second question. The, Chancellor filed a written opinion which, in his usual manner, carefully analyzes the evidence and makes application thereto of the legal principles involved. After a careful study of the entire record, we find that this, opinion so fully reflects our views that we are adopting it as our opinion in this case. It is as follows:
"It is the claim of Iva Brown that she and J. Wat Brown, the decedent, entered into a common law marriage in Florida. It is alleged that a common law marriage is valid in that State and the proof, uncontradicted, is to that effect. One of the decisions of the supreme court of Florida on the subject referred to by the witness giving this evidence is that of Catlett v. Chestnut,
"And with reference to the effect given that kind of marriage in Florida, it stated; 'Where two parties, both competent to enter into a marriage status, consummate a common-law marriage, they are just as effectually married to one another as if they had been married pursuant to a marriage license and a marriage ceremony conducted by a minister or authorized civil officer officiating in the presence of a throng of witnesses.' *Page 800
"The leading decisions of the court upon the subject are set forth in the opinion.
"And I may add that this test of conduct creating the presumption of marriage is that generally applied where common law marriage is upheld. Elkhorn Coal Corp. v. Tackett,
"The evidence for Iva Brown is, that she and J. Wat Brown lived together in Florida in the winter of 1942 and each of the succeeding winters until and including 1945, as husband and wife; that he introduced her to his friends and acquaintances as his wife; that they occupied the same room at the boarding house where they stayed for part of the time, as husband and wife; that they roomed together at another house for about five or six weeks as a married couple; that Brown bought property there, which he and Iva occupied as husband and wife. These so-journs in Florida lasted from several weeks to four or five months. Two of these witnesses Mated that they spent about four months with the Browns in their Florida home in the winter of 1943-1944. There is no testimony to the contrary of this evidence from these witnesses as to the relationship of Brown and Iva while living in that State. Therefore, according to the uncontradicted testimony, throughout the period of their He in Florida they lived together as husband and wife, professedly, publicly, and were so regarded by their associates and acquaintances. This was sufficient, under the Florida law is declared in the decisions of the Supreme Court of that State, to show they consummated common law marriage there.
"But the administrator and the heirs of Brown insist that inasmuch as this couple were living together in this State before their first trip to Florida, in the winter of 1942, and a common law marriage may not be consummated in Kentucky, except for certain purposes not of concern here, and since Iva does not claim they had been married ceremonially, it must follow that they were living together illicitly prior to going to Florida and their cohabitation in Florida must be regarded as but a continuation of that illicit relationship. And I think the testimony relative to this enforces the conclusion that they were during the time prior to going *Page 801 to Florida living together without the sanction of marriage, for common law marriage may not be consummated here. But I do not think that because they had been cohabiting unlawfully in Kentucky, their cohabiting in Florida was likewise unlawful * * * Whether that was the case depends upon their conduct by word and act, when living in that State and the significance given that conduct by the law of Florida. It must be kept in mind that in Florida, as declared in the quotation above from the Catlett case, where a common law marriage is consummated, it is just as effectual as one celebrated under the most solemn ceremonial rites. To be sure, in determining their relationship when cohabiting in Florida, it is well enough to keep in view that they had been living together in Kentucky unmarried. Presumptively, their relationship manifested in Kentucky would, nothing else appearing, carry over into their lives together in Florida. (35 Am. Jur. p. 314, Sec. 203). As that text states, this is but a presumption, that may be rebutted by evidence showing a relationship giving rise to a common law marriage. So any presumption of illicit relationship because of their lives together in Kentucky before coming to Florida is rebutted by the evidence, uncontradicted, of their cohabitation after coming to Florida being such as plainly evincing consummation of common law marriage.
"There is testimony, also, as to their manner of life in this State after their first trip to Florida, in 1942. On this, witnesses for the heirs testified as to declaration of Brown that he and Iva were not married. With the exceptions presently given, these assertions of Brown were made out of Iva's presence. A cousin of his testified that on two different occasions Brown introduced Iva to the witnesses as 'the cook.' And Birdie Roberts, who has lived with Brown's sister, Mrs. Austin, in Liberty, Kentucky, for some years, testified to hearing Brown say to Iva, after the latter had said she and Brown were married, that he was not married to her. This conversation, this witness said, took place at the home of Mrs. Austin in Liberty, 'along about 1943.'
"On the other hand, the two next door neighbors of Brown in Boyle County testified that they lived this near him for two or three years next before his death and that throughout that period Brown and Iva lived *Page 802 together as husband and wife, and were so regarded by the public. There were two deeds in evidence, one from Brown conveying land he owned in Florida, and the other from him for land of his in Casey County, Kentucky. In each Iva Brown is styled his wife and joins as grantor. The one for the Florida land is dated April 18, 1944, and that for the Casey land November 20, 1943. The certificate of acknowledgement as to the Florida land shows it was taken in Boyle County, Kentucky, while that to the other deed shows it was acknowledged in Casey County, Kentucky.
"If their manner of life together in Kentucky after their first trip to Florida in the winter of 1942, may properly be considered in reaching a determination whether they consummated common law marriage in Florida during that first visit there in 1942, then, as I appraise the testimony it preponderates in favor of their marriage. The declarations of Brown out of the presence of Iva make up in great measure the evidence the heirs offer on the matter. Counsel for Iva insist his declarations under such circumstances are incompetent. So far as I can discover, that proposition has not been directly ruled upon in this jurisdiction, though in Elkhorn Coal Corp. v. Tackett,
"Common law marriage is not recognized in this State, except for enforcing certain provisions of our Workmen's Compensation Act (KRS
"Counsel for the heirs in their brief rely upon Damron v. Damron,
"In support of this conclusion, the court refers to McChesney v. Johnson, Tex. Civ. App.,
"In the case at bar, the uncontradicted evidence, as has been noticed, shows that the requisites of the Florida law concerning a valid common law marriage being consummated there, were satisfied. Nor did their manner, of cohabitation after the return to Kentucky discredit this status. Furthermore, it must not be overlooked that under the law of Florida regarding common law marriages, if it is once consummated, it is just as effectual as a ceremonial one, as heretofore pointed out. In the case cited previously as to this being the true significance of a common law marriage in Florida, that of Catlett v. Chestnut, the court stated 91 A.L.R. page *Page 805 223: 'If the marriage status ever once comes into existence, it remains in full force thereafter until it is dissolved by law or death of one of the parties. Subsequent acts of concealment or maintenance of secrecy concerning the relationship between the parties is not sufficient to destroy the marital status after it has once been assumed in contemplation of law.'
"It is my opinion, therefore, that at the time of his death Brown and Iva were husband and wife. With regard to whether certain items of personal property belong to the estate of Brown or to Iva, they consisting of an automobile, a cow, a refrigerator and some household furniture, the only evidence we have on the subject, except as to the automobile, is that for the administrator, that these things had been the property of Brown for sometime prior to his death. Iva offered no testimony as to those items. But the burden was upon her to show Brown had given them to her. Buckel v. Smith's Adm'r, 82 S.W. 235, 26 Ky. Law Rep. 494; Denker v. Denker,
"Where a close and confidential relationship between the parties is shown, the evidence to support the gift must be of such quality as to leave no reasonable doubt about the transaction, and where the donor is mentally or physically infirm, and this relation of intimacy and confidence exists, the minimum requirement of the law is that the evidence should establish it was done freely, voluntarily, and without any vice rendering it unfair or inequitable. Combs v. Roark,
"Counsel for Iva have filed exceptions to portions of the testimony of a number of the witnesses. These may be grouped as to competency of declaration of Brown as to not being married to Iva; as to proceedings in county court on her application to be appointed administratrix of the estate; as to statements of witnesses relative to the announcement in the Advocate-Messenger of the marriage of Brown and Iva, together with the second newspaper statement correcting it; the testimony regarding the claim of Iva to a ceremonial marriage in Lexington. I have already ruled that the declarations of Brown would be treated as competent and I think the other testimony objected to is also competent. The administrator and heirs have filed exceptions to the testimony of Iva Brown as to conversations or transactions with decedent, and also as to the evidence of William Thurmond. These exceptions are sustained. The exceptions filed by counsel for Iva as to the testimony of Mrs. Austin relative to anything Brown said or did, where Iva was not present, are sustained. Judgment will be entered in accordance with these conclusions." *Page 807
In briefs filed in this court after the above opinion was written and in an effort to secure reversal thereof, appellants laid great stress on several points in the evidence not referred to in the above opinion. One of these points is that a Danville newspaper in its issue of December 29, 1941, carried an account of the marriage on November 14, 1941, of Mrs. Iva Robinson and Mr. J. Wat Brown and said that they would shortly leave for Florida to spend the winter. In the issue of the following day, December 30, 1941, there was published a correction in which it was stated that the previous day's account of the wedding was incorrect and that no such wedding had taken place. The testimony showed this correction was made at the demand of Mr. Brown. Another point stressed was that on December 31, 1941, J. Wat Brown deeded a farm in Lincoln County, Ky. to Banks Hudson and in the caption of this deed Mr. Brown is referred to as an unmarried man. He alone signed the deed and no wife joined therein. This deed was executed the day after the announcement of his wedding had appeared in the paper. The attorney drawing the deed asked if he were married and that, if so, his wife would be a necessary party to the deed. Mr. Brown denied then that he was married and said the item in the paper was a mistake. We do not think this testimony is of great importance in its bearing on the common law marriage which resulted from their living together in Florida between January 1942 and February 1945. It will be noted that the newspaper announcement and the sale of the farm to Hudson both occurred in December 1941, which was before the time in 1942 when the common law marriage relationship began in Florida. It is this Florida common law marriage that is relied on by appellee, Iva Brown, not any ceremonial marriage in Kentucky.
Another point stressed in appellants' brief is that no person testified as to when, how or where the Browns married in Florida. Of course, there could be no such testimony since there was no claim of any ceremonial marriage in Florida. A common law marriage seldom, if ever, begins with an overt act as does a ceremonial marriage. It is a gradual thing and results from an intention formed and a cohabitation begun by mutual agreement and is evidenced by a continuation of that *Page 808 relationship and the holding out of themselves to the public as husband and wife. We think there was overwhelming and uncontradicted proof of the existence of this relationship during the time these parties spent in Florida.
Judgment affirmed.