Appeal from the Probate Court of Cook County; the Hon. HOWARD
C. RYAN, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 5, 1964.
This appeal is taken from a judgment of the Probate Court of Cook County, when after hearing, the court found that the petitioner, Esther Corder, had failed to prove her claim of a common-law marriage contract entered into between her and Albert B. Enoch in Colorado, and her petition was dismissed.
Albert B. Enoch died testate in Cook County, Illinois, on June 7, 1958. His will was filed in the Probate Court of Cook County July 10, 1958. On July 19 proof of heirship was made by Clara B. Enoch, the sister of the deceased, which showed that she was the only heir-at-law and next of kin, and that Albert B. Enoch was never married. The case went through the ordinary process in the Probate Court, and the Continental Illinois National Bank and Trust Company of Chicago qualified as executor of the will of Enoch. The estate was closed May 6, 1960, and the executor was discharged.
On November 30, 1960 Esther Corder filed a petition for leave to reopen the estate and to correct the table of heirship to show her as the widow of Enoch. An amended petition was filed on January 17, 1961, which prayed that the order closing the estate be vacated; that the petitioner be given leave to correct the table of heirship to show her as the widow of Enoch; and that she be given leave to renounce the will and elect to take her share under the law and for her widow's award.
On February 23, 1961 the petitioner filed a second amended petition to reopen the estate, in which petition she alleged, among other things, that Enoch died June 7, 1958, in Ottumwa, Iowa; that letters testamentary were issued and his will admitted to probate in the Probate Court of Cook County on July 10, 1958, and that the table of heirship was entered and proved July 21, 1958 by Clara B. Enoch, a resident of Ottumwa, Iowa, without notice to petitioner; that the Continental Illinois National Bank and Trust Company of Chicago was then appointed executor; that Clara B. Enoch was the sole beneficiary under the decedent's will; that before the estate was closed an attempt was made to settle the alleged claim of the petitioner, and that without notice to her the estate was closed on May 6, 1960; that Clara B. Enoch had testified that Enoch had never been married, whereas she had no knowledge with reference to his marital condition.
The petition further sets up the petitioner's meretricious relationship with Enoch from 1926 until 1935, when she alleges that a common-law marriage took place in Colorado; that afterwards they returned to Chicago, each pursuing his respective business occupation [the petitioner was a stenographer]; that on many occasions they met and lived together as husband and wife in Chicago and in various other cities; "and further, that they continued to live and cohabit together and hold each other out as husband and wife from that date down to decedent's death"; and she prays that the order closing the estate be vacated and that she be given what rights she would have under law as the widow of Enoch. The petition was verified.
On April 3, 1961 the court denied the respondents' motion to dismiss the petitioner's second amended petition and allowed thirty days to answer the same. On May 3, 1961 the respondents filed a verified motion for summary judgment. On February 14, 1962 an order was entered denying the respondents' motion for summary judgment, and the respondents were given thirty days to answer the petitioner's second amended petition. On April 23, 1962 an answer was filed. The cause was heard and judgment was rendered against the plaintiff and in favor of the defendants. The judgment order was entered by the court on May 3, 1963, and from this final order the plaintiff appeals.
This action was brought to reopen a closed probate estate in order that the petitioner might prove that she was the common-law wife of the deceased and to have the table of heirship so show so that thereupon she could claim a widow's rights in the estate as provided for in the statutes.
The first issue we will discuss is whether the court properly sustained the respondents' objections to the testimony of the petitioner on the theory that her testimony could not be received because of the provisions of sections 1 and 2 of the Illinois Evidence and Depositions Act (Ill. Rev Stats 1963, c 51, §§ 1, 2). That Act in section 1, changes the common-law rule and provides that no person shall be disqualified as a witness in any civil action, suit or proceeding because of his or her interest as a party. Section 2 sets out an exception to the general rule laid down in section 1 and provides that no party to any civil action, suit or proceeding shall be allowed to testify in his own behalf by virtue of section 1, when any adverse party sues or defends as the executor, administrator, heir, legatee or devisee of any deceased person. There are five exceptions to the rule set out in section 2.
The first exception permits an interested party to testify to facts occurring after the death of the deceased person. The second exception relates to testimony which may be admitted to rebut testimony of an agent of a deceased person regarding conversations or transactions between the agent and the party in interest. The third exception provides that if any party suing or defending testifies on behalf of a person suing or defending to any conversation with the opposite party in interest, then that party shall be permitted to testify to the same conversation or transaction. The fourth exception provides that if any witness not a party to the record testifies to any conversation of any adverse party in interest occurring before the death and in the absence of a deceased person, such adverse party in interest may also testify. The fifth exception deals with the right to admit the deposition of a deceased person in evidence.
The case which comes closest to the instant case is In re Maher, 210 Ill. 160, 71 N.E. 438, in which Jessie R. Maher filed a petition in the Probate Court alleging that she was the lawful wife of the intestate and prayed that the court order the administrator to pay over her distributive share of the estate. The petitioner claimed that a common-law marriage had been entered into between her and the deceased Maher. The court pointed out that the only issue in that case was whether or not at the time of Maher's death the petitioner was or was not his wife, and that this necessarily resolved itself into a question as to whether a contract of marriage was ever entered into between them. That is the same issue we are now discussing in the instant case. The court cited Laurence v. Laurence, 164 Ill. 367, 45 N.E. 1071.
In the Maher case the court states that it is a case which is to determine to whom an estate shall be distributed, and further states, at 210 Ill. 169, 170:
". . . The real defendants to this suit are those, other than petitioner, who assert that they are the heirs-at-law, whether they be the brothers and sisters and their descendants solely, or the brothers and sisters and another claiming to be the lawful widow. The person who in this cause seeks to establish the fact that she was the wife of the deceased at the time of his death, if she testify, is testifying against the heirs of the deceased, and to do that she is incompetent. The theory of the statute is, that as the mouth of the deceased is closed by death, the mouth of the living who asserts a claim against the dead shall be closed by law. In adjusting their rights among themselves, those who are conceded or have been adjudged to be heirs of the deceased may testify each against the other. But a vastly different case is here presented. This petitioner seeks to swear that she is heir, and thereby establish the relation which, when not conceded, must be established by the judgment or decree of a court before she can testify. If she is competent, then any woman with whom a man has illicitly and openly lived and cohabited, both being then unmarried, has it in her power, after his death, to establish the fact that she ...