Citations
- 7 Ohio App. 2d 271
Full opinion text
Corrigan, J.
Appeal is presented to this court on questions-of law from a judgment rendered by the Probate Court of Cuyahoga County on July 16, 1965, finding that certain exceptions to an inventory and appraisal, filed on behalf of one Catherine M. O’Connell in connection with the probate of the estate of Edward A. Soeder, were well taken; and finding further that the exceptor, Catherine O’Connell, be granted her rights in such estate as surviving spouse, namely, a year’s allowance as provided by Section 2117.20, Revised Code, and property exempt from administration as provided by Section 2115.13, Revised Code.
Parallel appeals were filed by Theresia Soeder Towns, executrix of the estate of Edward A. Soeder, being No. 27581 on the docket of this court, and by Isabella S. Chiman, a beneficiary under the will of Edward A. Soeder, No. 27584 on our docket. Both these ladies are sisters of the decedent. The appeals were argued together, and we will pass on the respective assignments of error in one opinion.
The decedent, Edward A. Soeder, died testate on February 29, 1964. Decedent’s will was admitted to probate on March 24,1964, and his two sisters were named to share the bulk of the estate. The will was executed on July 23, 1963, and made no mention of a surviving spouse.
On August 3, 1964, the executrix filed the inventory and appraisal. On September 11, 1964, one Catherine M. O’Connell filed her exceptions to the inventory and appraisal, claiming that she was the surviving spouse and sole, heir at law of the de,cedent. Later, on November 12, 1964, Catherine M. O’Connell filed supplemental exceptions to the inventory and appraisal demanding her lawful rights as a surviving spouse. Following .an extended hearing on the exceptions, the Probate Court ruled i.on July 16,1965, that the exceptor, Catherine M. O’Connell, was ■the common-law wife of the decedent.
The following errors are assigned in appeal No. 27581:
1. Error in assuming jurisdiction of the subject matter and/ or the parties.
2. Error in finding that the exceptor established by clear and convincing evidence that she was competent to marry.
3. Error in finding that the exceptor established by clear and convincing evidence a mutual agreement in proesc.nii between exceptor and the decedent, Edward A. Soeder.
4. Error in finding that a common-law marriage was established by exceptor.
5. Error in not allowing Isabella Soeder OHman to remain in the courtroom during the entire course of the trial.
6. Error in not permitting the introduction of estate’s exhibits 67 and 68.
7. Error in not permitting the testimony of Father Casper Hermann, Father Victor Eanly and Monsignor Kirby.
8. Error in excusing Father Butler.
9. Error in allowing the introduction of exceptor’s exhibits A, D, F, I, E, S (all photographs), and TTT and WV (letters).
10. Error in its rulings on the reading of the deposition of John O. Dissinger, exceptor’s rebuttal witness.
11. Error in that the finding in favor of the exceptor is contrary to law, and the court below should have found in favor of the estate.
12. Error in that the finding of the court below is manifestly against the weight of the evidence.
Assignments of error in appeal No. 27584 are:
1. Exceptor failed to prove competency to marry.
2. The Probate Court erred in finding that only one element was necessary to prove a common-law marriage.
3. Error claimed as to words in presentí being proved by clear and convincing evidence.
4. Barring the courtroom to an heir under the will and at law was error.
The record reflects certain facts which are deserving of .mention hero in order that there may be an understanding of 'the relationship of the decedent and the exceptor. Edward A. Soeder was seventy-four years old at his death and had resided at 1635 East 38th Street, Cleveland. He was in the dairy products business, and his estate totalled approximately a half million dollars.
As the court below found in its opinion, “Edward A. Soeder did not hold himself out to be married. The records at the hospital divulge his statement that he was single, as did his income tax records, will and other documents. In fact, he madej statements that he never was going to be married/’
Thirty of the forty-six witnesses called by the estate to testify were friends, neighbors and close business associates of! ¿he decedent, iaetadlng-women he dated and 0ineswíQanmi-