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Barbour v. George

June 2, 1936

BARBOUR
v.
GEORGE ET AL.



Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.

Author: Evans

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Appellant brought this suit as the surviving husband to recover a share of the estate of Fannie Henderson, deceased, and to obtain a decree adjudging him to be the sole heir at law and next of kin of the decedent with right to accounting as against appellee, trustee named in the will of said deceased, and for other relief. The right to recover was predicated upon an allegation that appellant was the husband of the decedent.

To establish this status, he asserted a common law marriage in Michigan, valid in Illinois. Illinois does not recognize common law marriages performed in said state. Smith-Hurd Ill. Ann. Stats., c. 89, § 4.

Appellee denied that a so-called marriage ceremony in Detroit, such as was described by appellant's witnesses, had been performed. Appellee also denied the subsequent cohabitation of the parties in Michigan and asserted that such acts, if proved, did not establish the status of husband and wife. Smith-Hurd Ill. Ann. Stats., c. 89, § 19.

There was evidence tending to show that the contracting parties went through what is termed a common law marriage ceremony in the presence of two witnesses at Detroit, Michigan, on Sunday, August 16, 1925, and that they thereafter cohabited as husband and wife. Numerous witnesses testified to admissions made by decedent to them which tended to establish both the marriage ceremony and the cohabitation.

Appellees, on the other hand, offered much testimony, the substance and effect of which were to disprove the asserted marriage ceremony as well as the subsequent cohabitation of the parties as husband and wife. Appellees also attempted to discredit the testimony of witnesses who testified for appellant. In some instances the impeachment was thorough.

At the close of the trial the judge filed a memorandum setting forth his views upon the vital issues in the case and later made findings of fact in appellees' favor.

We deem it unnecessary to consider the effect of the Illinois statute (Smith-Hurd Ill. Ann. Stats., c. 89, §§ 4, 19) upon a secret common law marriage in Michigan. It is sufficient to observe that in our opinion the evidence in the case supports the findings of the trial judge and for that reason the decree must be affirmed. Judge Barnes gave a statement of his reasons for his finding that the asserted marriage ceremony never occurred. They are persuasive.

We are not required to pass on this question of fact as an original proposition, but merely to search the record to ascertain whether there is substantial factual support for it.

It would not be helpful to detail all the testimony which tends to support or to dispute the appellant's assertion of marriage. While there were witnesses who testified directly to the marriage ceremony and to some cohabitation thereafter, there is also evidence which tends to discredit these witnesses and their story.

Appellant's story, while not impossible, was highly improbable. He did not testify, but his witnesses described a most ardent courtship on the part of decedent, past 72, which lasted nearly a week and which swept him off his feet and left him without power of resistance. He was about 34 years of age at the time, and was studying law.

The story is not a pleasant one. It is disagreeable to discuss. The determinative issue is one of fact. The trial judge saw and heard the witnesses. The findings by him made are binding on us if support therefor may be found in the evidence. Aside from the persuasive influence of these ...


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