APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. KOGUT, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Petitioner filed a petition in the probate division of the circuit court of Cook County seeking to amend a proof of heirship and asking that she be declared the surviving spouse of the decedent, Lawrence Wakefield. The petition was heard by the trial court without a jury, and resulted in an order finding that petitioner had failed to establish that she was decedent's surviving spouse and dismissing the petition.
On February 19, 1964, decedent died intestate in Cook County. On February 21, 1964, a petition for letters of administration was filed by James L. O'Keefe, Public Administrator. In 1966 a declaration of heirship was entered reciting that respondents James Gamby and Elsie Gamby Bell were the only known heirs of decedent.
Approximately 5 years later, on March 11, 1971, petitioner filed her petition alleging that she was the common-law wife of decedent. She claimed that she became the common-law wife of decedent in October 1928 in Detroit, Michigan, and lived with him in Michigan until 1933. She further alleged that she moved to Chicago with decedent in 1933 and lived there with him until 1934.
On May 24, 1920, petitioner married Harry Dore in Chicago, and did not divorce Dore prior to his death in November, 1928. The petitioner married Levi McBride in 1950.
At the hearing on the petition on July 31, 1972, the court sustained respondents' objection and ruled that petitioner was incompetent to testify under the "Dead Man's Act." Ill. Rev. Stat. 1971, ch. 51, par. 2.
Argie Post of East Detroit, Michigan, testified for petitioner that they were acquainted and that she knew petitioner as Jessie Dore. In 1928, at a social gathering in Detroit, petitioner introduced the decedent as her husband. At the same time, the decedent stated that petitioner's name was Wakefield. Thereafter, Argie Post moved into an apartment with the petitioner and the decedent. The witness had one bedroom, and the couple shared the other bedroom. During this time, they addressed each other as husband and wife. The witness further testified that the decedent and petitioner left for Chicago in 1934, while she remained in Detroit. Respondents introduced evidence of Argie Post's prior convictions.
Respondents' evidence at the hearing consisted of documentary evidence: a certified copy of the marriage license issued to petitioner and Levi McBride in 1950, which stated that Jessie Dore was a widow who had been married only once; and decedent's death certificate containing the information that he never married.
Petitioner initially contends that the trial court erred in allowing respondents' motion for a directed finding at the close of petitioner's case. Petitioner argues that the evidence presented on her behalf established a prima facie case that she was decedent's surviving spouse, and that when respondents failed to offer any evidence in rebuttal, she was entitled to a declaration that she was decedent's surviving spouse and heir.
• 1 An examination of the record does not support petitioner's assertion that the trial court granted respondents' motion for a directed finding. While respondents did make such a motion, the record reveals that the trial judge thereupon asked respondents if they had anything else to offer. Respondents then introduced the aforementioned documentary evidence and rested. After hearing argument, the trial court ruled that petitioner had failed to establish that she was decedent's surviving spouse and dismissed the petition. The court did not state that it was granting respondents' motion for a directed finding. In any event, the trial court, in a trial without a jury, shall weigh the evidence in deciding a motion for judgment at the close of plaintiff's case. (Allfree v. Estate of Rosenthal (1969), 113 Ill. App.2d 90, 251 N.E.2d 792.) We believe that the trial court correctly determined that plaintiff had failed to establish that she was decedent's surviving spouse.
In the trial court, respondents argued that petitioner had failed to overcome the presumption of the validity of the subsequent ceremonial marriage; that because petitioner was legally married to Harry Dore, she was incapable of contracting a common-law marriage; and finally, that petitioner failed to satisfy the essential requirements in order to contract a valid common-law marriage. We deem it necessary to consider only respondents' final argument in order to demonstrate that petitioner failed to establish that she was the decedent's surviving spouse.
Both sides agree that prior to 1957 common-law marriages contracted in Michigan were valid and enforceable and carried the same civil rights and obligations as a ceremonial statutory marriage. Michigan courts have held, however, that in order to establish a common-law marriage two elements are essential: one, a present agreement of the parties to take each other as husband and wife, and secondly, their subsequent cohabitation as husband and wife. (Griffin v. Griffin (1923), 225 Mich. 253, 196 N.W. 384; Lockwood v. Lockwood (1922), 220 Mich. 124, 189 N.W. 871.) The burden of proof is on the proponent to show that a present agreement exists between the parties to take each other as man and wife at the present time, not in the future. (In re Meredith's Estate (1937), 279 Mich. 298, 272 N.W. 683.) Evidence to establish a common-law marriage must be clear and convincing. Brown v. Long Manufacturing Co. (1921), 213 Mich. 221, 182 N.W. 124.
The fact that parties cohabit together and are known as husband and wife, although one element of common-law marriage, is not sufficient to establish such a marriage. A present agreement to take each other as husband and wife must also be established. In the present case, the record is devoid of any evidence indicating that there was an agreement between the petitioner and the decedent to take each other as husband and wife. Argie Post's testimony merely indicated that the parties cohabited together and held themselves out to be man and wife. The language of the Michigan Supreme Court in Brown v. Long Manufacturing Co., supra, at page 224 is pertinent:
"We must also recognize that there are other couples * * * living together as a mere matter of convenience or for other reasons and, who, as a matter of protection against criminal prosecutions or unfavorable comment, represent themselves to be husband and wife, and are known by the same name, ...