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In Re Estate of Bailey

OPINION FILED JUNE 23, 1981.

IN RE ESTATE OF EARL J. BAILEY, DECEASED. — (MARIE BAILEY, PETITIONER-APPELLANT,

v.

VELMA H. BAILEY, ADM'R OF THE ESTATE OF EARL J. BAILEY, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Shelby County; the Hon. DANIEL DAILEY, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Velma H. Bailey, respondent-appellee, was granted letters of administration in the Circuit Court of Shelby County. Marie Bailey, petitioner-appellant, filed a petition to vacate the appointment of Velma Bailey as the administrator of Earl J. Bailey's estate. The trial court denied petitioner's request. Marie Bailey appeals.

After Earl Bailey's death, without issue, Ida Venie Bailey, decedent's mother, filed a petition to have letters of administration issued as provided in section 9-4 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 9-4). In the petition Marie Bailey was not listed as decedent's wife and heir-at-law. Velma H. Bailey was appointed administrator pursuant to Ida Venie Bailey's nomination (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 9-3(e)). A citation to discover assets was issued to petitioner, which was her first notice that Earl Bailey's estate had been opened. On April 2, 1979, petitioner instituted this action to vacate respondent's appointment. Respondent defended on the ground that petitioner was not the wife of decedent and therefore not entitled to letters of administration.

Under the statutory preferences established in the Probate Act, the first preference to act as administrator is given to a surviving spouse or any person nominated by the spouse. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 9-3(a).) Surviving parents and their nominees are fifth in order of preference. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 9-3(e).) If petitioner could establish that she was the wife of decedent, she would be entitled to have respondent's nomination vacated in light of the mandatory preferences established in section 9-3. In re Estate of Morrissey (1976), 38 Ill. App.3d 981, 349 N.E.2d 642.

Both parties agree that two issues are central to the resolution of this case. First, was petitioner properly precluded from testifying as to her relationship with the decedent under section 2 of the Evidence Act (Ill. Rev. Stat. 1979, ch. 51, par. 2)? Second, was the trial court's ruling that there was insufficient proof of petitioner's ceremonial marriage to decedent against the manifest weight of the evidence?

Petitioner's testimony concerning her marriage to decedent was objected to by respondent on the ground that she was barred from testifying by section 2 of the Evidence Act inasmuch as her testimony was adverse to the admitted heirs. The trial court sustained the objection, ruling that her heirship need be proved by noninterested witnesses.

Marie Bailey testified in her offer of proof that she first met Earl Bailey in Missouri in 1944. After decedent was discharged from the service he started dating petitioner. On March 17, 1948, petitioner testified that she and decedent went to a little town close to Searcy, Arkansas, and were married by a justice of the peace. There were several people present at the ceremony but they were other couples waiting to get married, their identity being unknown to petitioner. The marriage took place at the house of the justice of the peace in a small room. The ceremony was witnessed by two ladies and a man, one of the ladies being the justice's wife. Petitioner further testified that she could not remember the name of the justice. Their marriage license had been lost during the course of moving in 1961.

• 1, 2 Both Arkansas and Illinois recognize the validity of a ceremonial marriage even though no license is obtained. (De Potty v. De Potty (1956), 226 Ark. 881, 295 S.W.2d 330; Haderaski v. Haderaski (1953), 415 Ill. 118, 112 N.E.2d 714.) Neither Arkansas nor Illinois recognize common law marriages.

Petitioner argues that the Evidence Act does not bar her testimony as to her marriage with decedent. Reliance is placed on section 2(4). The Act was amended in 1973 and provides in part that,

"In the trial of any civil action in which any party sues or defends as the representative of a deceased or incompetent person, no adverse party or person directly interested in the action shall be allowed to testify on his own behalf to any conversation with the deceased or incompetent person or to any event which took place in the presence of the deceased or incompetent person, except in the following instances:

(4) No person shall be barred from testifying as to any fact relating to the heirship of a decedent." Ill. Rev. Stat. 1979, ch. 51, par. 2(4).

Respondent claims that the above exception, which has not heretofore been construed, does not apply to the proffered proof. It is asserted that there is an absolute bar to testimony concerning conversations or events which took place in the decedent's presence to which the decedent could have testified. Respondent argues that this position is supported by authority. (See Raymond, 1973 Legislative Changes Affecting Probate and Tax Law, 62 Ill. B.J. 342 (1974).) Petitioner asserts that the heirship exception is applicable and cites a student note (Illinois' Amended Dead Man's Act, 1973 U. Ill. L.F. 713) appearing in the University of Illinois Law Forum. It is claimed that the 1973 amendment was meant to overturn a line of cases beginning with Laurence v. Laurence (1896), 164 Ill. 367, 45 N.E. 107, and including In re Estate of Diak (1966), 70 Ill. App.2d 1, 217 N.E.2d 106, and In re Estate of Priebe (1969), 108 Ill. App.2d 407, 248 N.E.2d 140.

We have examined the applicable authorities and find that petitioner should have been allowed to testify as to her marriage to decedent.

The primary reason for the prohibition of testimony in the Evidence Act is to protect decedents' estates against fraudulent claims. (In re Estate of Diak (1966), 70 Ill. App.2d 1, 217 N.E.2d 106.) In spite of this salutary purpose, such statutes have been widely ...


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