Thompson, Et Vir v. Harris

Chapman, J. The sole question presented by this appeal for a decision here is the sufficiency of the evidence to show a common law marriage between Rose B. Adams and the deceased, Fred W. Adams. The chancellor below was of the view, and so decreed, that the testimony clearly established a common law marriage between the parties. Common law marriages are recognized and sustained by the laws of Florida. See Mendel v. Mendel, *331 147 Fla. 167, 1 So. (2nd) 571; Orr v. State, 129 Fla. 398, 176 So. 510; Garcia v. Exchange Nat. Bank, 123 Fla. 726, 167 So. 518; Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212; LeBlanc v. Yawn, 99 Fla. 328, 126 So. 789; Chaves v. Chaves, 79 Fla. 602, 84 So. 672; Madison v. Robinson, 95 Fla. 321, 116 So. 31; Warren v. Warren, 66 Fla. 138, 63 So. 726; Caras v. Hendrix, 62 Fla. 446, 57 So. 345; Daniel v. Sams, 17 Fla. 487. The testimony shows that Fred W. Adams, widower, seventy years of age, during the latter part of 1938, was living in an apartment in St. Petersburg, Florida, and during the month of December met Rose B. Ferlong, widow, sixty-three years of age, and from this acquaintance date they were together practically each day until the death of Fred W. Adams, which occurred June 16, 1939, in Pinellas County, Florida. He died intestate and his estate was inventoried at the approximate sum of $22,000.00. In a petition for Letters of Administration she designated herself as the widow of the late Fred W. Adams and Letters Testamentary issued. Prior to April 2, 1939, Fred W. Adams and Rose B. Ferlong lived in separate apartments in St. Peters-burg, when Fred W. Adams bought a house and lot and both of them moved into the house and there lived until April 16, 1939, when the parties decided to marry. They went into the sitting room, with no one else present, where they knelt down, according to the testimony of Rose B. Ferlong, and took the following obligation: . . We knelt down there and he said: T, Fred Adams, take thee, Rose Ferlong, to be my lawful wedded wife, for better or worse, and to keep you in *332 sickness and in health, until death do us part,’ and I repeated the same thing. And he placed this ring, he said, ‘With this ring I thee wed and endow thee with all my worldly goods until death do us part in the name of the Father, the Son and the Holy Ghost.’ ” The relation of husband and wife, according to her testimony, existed from and after the date of the ceremony until the death of Adams some sixty days thereafter. The purchase of the home was published in the St. Petersburg newspapers and the parties were referred to in the articles as husband and wife. Friends of the couple played cards weekly with them in their respective apartments and later in the home to which they moved around April 2, 1939, and testified that they were husband and wife, but each was without knowledge or information as to the existence of or the date of the marriage. There is indisputable testimony in the record as to cohabitation by the parties after April 2, 1939, but the actual marriage ceremony rests on the tetsimony of Rose B. Ferlong given after death closed the lips of Fred W. Adams, the owner of the $22,000.00 estate. If the common law marriage is sustained, she will profit to the extent of a lawful interest in the Adams’ estate as the wife of the deceased. In the case of Madison v. Robinson, 95 Fla. 321, 116 So. 31, this Court held that the details of a conversation relied upon to sustain a common law marriage had between an interested witness and a person then deceased constituted a transaction within the inhibitions of Sections 4372 C.G.L. This rule was reiterated by this Court in the cases of LeBlanc v. Yawn, 99 Fla. 328,126 So. 789, and Catlett v. Chestnut, *333 107 Fla. 498, 146 So. 241. It is contended by appellee that these inhibitions were waived or removed by the appellant when she made Rose B. Ferlong her witness and the exception enunciated in Rich v. Hunter, 135 Fla. 309, 185 So. 141, and Smith v. Platt, 128 Fla. 745, 175 So. 721, are cited as controlling. The case at bar can be decided without ruling on this contention. Some nine months after the date of the death ■ of Fred W. Adams and prior to the date of the institution of the suit at bar and while Rose B. Ferlong was Administratrix of the Adams’ Estate, she wrote a letter to the appellant and same during the trial of the cause was by the planitiff below (appellant here) offered in evidence as Plaintiff’s Exhibit “F”, and was duly considered by the chancellor below. Pertinent and material statements concerning her alleged marriage with Fred W. Adams, appear in this letter above the signature of “Rose B. Adams” (Rose B. Ferlong) and are viz: “. . . Last March Fred asked me to marry him and I promised him I would. We decided we wanted to spend the rest of our lives in Florida, so I adopted it as my permanent home, as Fred was a legal resident & votes here. I brought my things to the house and Fred brought his, then we shopped around for the rest of the furniture, we stayed at our new home, because there was so much to be done. We had been here about two weeks when a picture of the house appeared in the papers saying ‘New Adams residence’ purchased by Mr. & Mrs. Fred W. Adams as their permanent home. Almost at once friends of Fred called to see the house and meet his wife, thus a situation was thrust upon us over which we had no control. *334 Our intention was to fix the house and have the yard laid out grassed & the shrubs put in, and then get married, go on a short trip, come home and enjoy our home, which we both loved as everyone thought we were already married, we decided to let it stand, so we took the marriage vows ourselves, and Fred placed our ring on my finger, and to God we consecrated our vows before God and the world I am Fred’s wife, known as such to everyone. We intended to go North, and on the way planned to legalize our marriage, but before we could do so my dear one was taken from me, he had a stroke, as we were returning home from a fishing trip ... I am appealing to you, through your love for him to let his memory remain sacred and unsullied because of circumstances over which we had no control. . . .” When on the witness stand her attention was directed to the above statement and an effort was made on her part to explain, alter or modify the same. We have carefully examined and followed her testimony incident thereto given on direct and cross examination. Her interpretation of the language employed or used in the letter, supra, when on the witness stand is not convincing, but is contradictory, self-serving, and but her opinions and conclusions: “We intended to go North and on the way we planned to legalize our marriage, but before we could do so my dear one was taken from me” and thus “I am appealing to you through your love for him to let his memory remain sacred and unsullied because of circumstances over which we had no control.” It will be seen from these statements that Adams died prior to their contemplated trip when they intended to have performed a ceremonial marriage. The record dis *335 closes that Fred W. Adams and Rose B. Ferlong had been previously married; both were familiar by experience with the law’s requirements as to marriage, and it is reasonable to assume that a marriage license and an officer authorized by law to solemnize marriages could have been obtained in the City of St. Petersburg within a few minutes by the parties if they truly desired to become husband and wife. Fred W. Adams because of death was never given an opportunity to testify in the case at bar. In a common law marriage the parties may express their agreement by parol or enter into such a ceremony as may satisfy their taste or tastes, because it is the agreement reached that makes the marriage contract. The words used or the ceremony performed is the evidence of intention of the parties to become husband and wife. The law requires that the parol agreement to become husband and wife contemplates an immediate cohabitation by the parties. An expressed future condition is fatal to a claim of marriage, and cannot be explained away by circumstances. The future condition discloses a mental reservation incompatible with consent. The letter sufra disclosed an intention of the parties to legalize their marriage on a contemplated trip North, but prior thereto Adams died. The testimony shows that the case at bar is ruled by Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156. The testimony adduced was legally insufficient to establish a common law marriage and for this reason the decree appealed from is hereby reversed. It is so ordered. Whitfield, Thomas and Adams, J. J., concur. Brown, Terrell and Buford, J. J., dissent.