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Spencer v. Burns





APPEAL from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.


Rehearing denied November 17, 1952.

This action had its inception in the superior court of Cook County when Robert Spencer, who alleged that he was the surviving spouse of Bertha Spencer, deceased, and Elizabeth Frowner, administratrix of the decedent's estate, filed a complaint seeking to partition real estate owned by Bertha Spencer at her death on February 1, 1948. Named as defendants were Will Burns and Isom Burns, the father and brother of the deceased, who resided in Arkansas and California, respectively. They in turn filed an answer which denied that Robert Spencer was Bertha's husband and a cross complaint which alleged that they were entitled to the real estate, its rents and profits. Shortly thereafter, Columbus Hughes, an illegitimate half-brother of Bertha Spencer, and Shirley Mae Helem and Ronald Helem, the grandchildren of a deceased illegitimate half-sister of Bertha Spencer, joined together and intervened in the cause, alleging that they were entitled to a share of the decedent's estate. Will Burns died before the cause was heard and his administratrix was substituted as a party defendant and counterclaimant. A hearing was held before a master, and, on the basis of his findings and recommendations, the chancellor entered a decree which awarded Robert Spencer a one-half interest in the real estate as the surviving spouse of Bertha Spencer, one half to Isom Burns, her brother, and denied the claims of the intervening illegitimate half-brother and the grandchildren of the illegitimate half-sister. Isom Burns has appealed to this court, contending that the chancellor erred in finding that Bertha Spencer was married to Robert Spencer and insists that since Will Burns's death, he, Isom, is entitled to the entire fee in the real estate. The intervenors, whose claims pose the question of the rights of an illegitimate and the descendants of an illegitimate to inherit from the lawful issue of the common, deceased maternal ancestor, have also appealed. They reassert their claim to a share of Bertha's estate and join Isom in contending that the court erred in finding that Robert Spencer was the surviving spouse of Bertha Spencer.

First consideration will be given to the issue of whether the proof shows that Robert and Bertha Spencer were ever married. No attempt shall be made to give the evidence in detail, for much of it is in such conflict as to make minute analysis a fruitless task. In general, there is abundant evidence that Robert and Bertha lived together as husband and wife in the home of Bertha's father, Will Burns, at Ferguson, Arkansas, for a period of about six months beginning in June, 1919. There is no evidence of cohabitation after this period. Robert had been courting Bertha and had Will Burns's permission to marry her, and when they took up their abode in the Burns home they told friends and relatives that they had been married at Helena, Arkansas, on June 9, 1919. No witness testified to having seen the ceremony, nor does it appear that either of the parties ever exhibited a wedding certificate. Witnesses for appellee Robert Spencer, stated that the couple had the reputation of being married in the community where they resided. In contrast, appellants' witnesses testified that the reputation of the relationship was that the parties were just "housekeeping" without benefit of matrimony, which practice, it was stated, was then not uncommon in the community.

Records kept in the court house at the county seat of Phillips County in Helena, Arkansas, show that a marriage license and certificate of marriage were issued on June 9, 1919, to Robert Spencer and Minnie Birdia, who were married the same day by a justice of the peace. Some months after the death of Bertha Spencer in 1948, at Robert Spencer's solicitation, the incumbent county clerk of Phillips County altered the record by deleting the name "Minnie" and by adding the name "Burns," so that it now appears that the license was issued to Robert Spencer and "Birdia Burns." No other license was ever issued to Robert Spencer in that county. It is suggested that the name "Minnie Birdia" appeared on the license as the result of a clerical error, and to bolster this theory appellees' witnesses testified that Bertha went by the name of "Birdie" while she lived in Arkansas, but all exhibited confusion as to just how the name was spelled. Witnesses for appellants denied that Bertha had been called "Birdie" and there was some testimony that there was a woman in that vicinity of Arkansas whose name was Minnie Birdia, the name appearing on the record copy of the wedding license. The only other evidence offered which throws any light on the discrepancy in names, was given by Rosemary Cooper, a friend of Bertha's in later years, who testified that in the early 1940's while the two women were discussing their marital status, Bertha expressed some doubt as to whether she was legally married because her "name wasn't right on the certificate."

As we interpret the record, Bertha and Robert separated late in 1919 or early in 1920 and did not again cohabit. Both apparently moved to Chicago, at some time or another, for the next elements of proof, with respect to their marital status, are centered on conversations and occurrences in that city in about 1946. There is testimony that Bertha made some acknowledgment from time to time that she was married and not divorced, but the witness so testifying could not say that Bertha was referring to Robert Spencer. There was no evidence that Bertha had ever married or lived with another man, and it is undisputed that she went by the name of Bertha Spencer until she died. In 1946, Bertha was contemplating the purchase of some real estate and had some discussion about the matter with her friend Rosemary Cooper. When Bertha expressed the doubt about the validity of her marriage as related above, Rosemary suggested that she see an attorney and recommended Steven Tyrakowski. Apparently Bertha did not put the question of the marriage license to the lawyer, though she did retain him to represent her in the real estate transaction, for, by his testimony, she told him that she was divorced and the preliminary papers for the financing and transfer of the property described her as being divorced. A preliminary title opinion was rendered and as a result Tyrakowski notified Bertha that he would have to get the details of her divorce and was told that she was not divorced but expected to procure one. The attorney testified that Bertha then came to his office and told him the details of her marriage and that based on the information she gave him he made the following notation on the preliminary title opinion: "Married to Robert Spencer in Helena, Arkansas, on June 9, 1919." Following this, a different plan of financing Bertha's purchase was adopted and the necessary documents were redrafted without describing her marital status. An attorney named Montelione, who represented the seller, confirmed that Bertha's vacillation on her marital status had made it necessary to redraft the documents of sale. He stated that although Bertha told him she was married and not divorced, he did not recall that the name of her husband had ever been mentioned to him.

There also appears in evidence testimony given in the probate court by both Will Burns and Isom Burns in which each stated that Bertha and Robert were supposed to have gotten married at Helena, Arkansas, in the spring of 1919, and that the two lived as husband and wife in the Burns home for the balance of the year.

Elizabeth Frowner, administratrix of Bertha's estate, was permitted to testify in this partition proceeding subject to objection, but at the conclusion of her testimony the master ruled that she was an incompetent witness and struck her testimony from the record. Robert Spencer made an attempt to testify, but was ruled to be an incompetent witness. He was, however, permitted to testify in rebuttal as to matters which had tended to connect him with a woman named Minnie Birdia.

Much of the evidence described was objected to by appellants and in this court they renew their objections to its admissibility on various grounds. The first contention made is that attorney Tyrakowski, Elizabeth Frowner and Robert Spencer, except for his rebuttal testimony, were incompetent witnesses for the reason that each are parties in interest in this cause. Appellee agrees that Robert Spencer was incompetent as a witness, the master so ruled and prevented him from testifying, thus there is no issue before us as to his competency. In like manner, the master held that Elizabeth Frowner was an incompetent witness and struck her testimony from the record. Appellee has assigned cross error asserting that she was competent as a witness; however, in the view we take of the evidence, no determination of her competency is necessary nor must her testimony be considered to arrive at the result we reach. There remains the question of Tyrakowski's competency as a witness. Though not clearly shown, we gather from the record that Robert Spencer first sought Tyrakowski's services when this partition proceeding developed. The latter did not however, actively participate in litigation and, as was his custom, turned the matter over to a firm of attorneys with whom he had a limited association for such purposes. It was customary that Tyrakowski would receive a portion of the fee in the cases he turned over to the firm, but his testimony in this case was that he had waived any fee when it became apparent that he would have to be a witness. A further reason advanced for his incompetency is that he represents Elizabeth Frowner, the administratrix of Bertha Spencer's estate, who, having been nominated by Robert Spencer, will stand or fall from such position dependent on the outcome of this case, her status thus directly affecting the fees that Tyrakowski will receive in the administration proceeding. We do not believe that either ground is sufficient to disqualify. Attorney Tyrakowski stated that he had withdrawn from this case and waived any fee, and there is no proof to the contrary. His interest in the partition proceeding is therefore not direct, certain and immediate, and in such cases we have held that his interest, if any, merely goes to his credibility and not to his competency. (Flynn v. Flynn, 283 Ill. 206; Bailey v. Beall, 251 Ill. 577.) As regards Tyrakowski's representation of the administratrix and the possibility of his loss of employment and fees in the probate court, as rendering him incompetent in this proceeding, this court held in Britt v. Darnell, 315 Ill. 385, that such an interest was too remote and indirect to render an attorney incompetent to testify in his client's behalf in a collateral proceeding. In the Britt case, which was a will contest, the court said of the attorney who was held to be a competent witness although he represented the executor named in the will: "The fact that his client, as a result of the litigation, may lose some property and be less able to pay him fees or have less occasion to employ him does not give him such an interest in the litigation as to make him incompetent to testify." Applying these authorities to the facts of this case, it is our conclusion that Tyrakowski was competent to testify and that the interest shown affects only the weight of his evidence.

It is next contended that the conversations between Bertha Spencer and attorney Tyrakowski, in which she revealed that she was married to Robert Spencer and not divorced, were privileged communications between a client and attorney and as such were not admissible in evidence. There are many exceptions to the "privileged communications" rule, one of which is that communications made by a client to an attorney for the purpose of being disclosed by him to others do not fall within the rule of privilege. (Dickerson v. Dickerson, 322 Ill. 492.) It will be recalled that Bertha Spencer communicated her true marital status to Tyrakowski for the specific purpose of meeting the objections made by the firm which rendered an opinion of title on the property she sought to purchase and finance. Under such circumstances, the conversations with her attorney, now claimed to be privileged, could only have been made for the purpose of allowing him to disclose the information both to the seller and to the title examiner. There was no thought or intention that the information given was to be safeguarded, but, rather, it was Bertha Spencer's purpose that the information be given to those persons whose objections barred her way to the purchase of the property. It cannot be said that such communications to her attorney were privileged communications within the rule and the master properly admitted them in evidence.

Claim is also made that the master erred in admitting in evidence the testimony which Will and Isom Burns had given in the probate court for the reason that they and the intervenors did not have a joint interest but a common interest. (See: Cunniff v. Cunniff, 255 Ill. 407.) We note from the record that the master struck the evidence of the testimony of Isom Burns as to all parties but Isom Burns and made a similar ruling with respect to evidence of the testimony of Will Burns, allowing it to stand only as to the administratrix of the latter's estate. We do not find that the objection now made in this court was made when the evidence was offered, though several objections were made on other grounds. On review, we have held that specific objections to evidence, based solely on particular grounds, are a waiver of objections to all grounds not specified or relied upon. (Village of Prairie du Rocher v. Schoening-Koenigsmark Milling Co. 248 Ill. 57.) On the record before us, the objection now made is without force.

Appellants intimate that there is other objectionable evidence but profess that they do not wish to tire this court by itemizing it or citing cases in point. We shall further lighten our burden by considering the point waived. This court will not search the record for error, nor will we consider vague objections as to the admissibility of evidence.

Next to be considered is appellants' assignment of error that the evidence does not prove that Robert Spencer married Bertha Spencer. In advancing this contention it is urged that Robert has failed to sustain his burden of establishing the marriage, the identity of participants, or that the marriage met the requisites for a valid marriage under Arkansas law. Some stress is laid upon the points that there is no evidence of a marriage license having been issued to Robert and Bertha, or of the actual performance of a wedding ceremony. However, we find the rule to be in this jurisdiction, that in civil actions, except in actions for criminal conversation, marriage may be shown by reputation, the testimony of witnesses or by circumstances. (Murrelle v. Industrial Com. 382 Ill. 128; Lowry v. Coster, 91 Ill. 182.) Thus, lack of proof of the elements complained of is not fatal to appellees' case. While there is conflict as to the reputation of Robert and Bertha's ...

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