Roberts v. Wilkerson , 70 Ga. App. 245 ( 1943 )

The only issue involved in the instant case is the question of a marriage vel non as claimed by the applicant for a year's support, and denied by the caveators. The defendant in error contends that the evidence shows only a meretricious relationship between the parties. The plaintiff in error contends that the evidence shows conclusively that there was a common-law marriage per verba de praesenti followed by cohabitation as husband and wife, which made a valid common-law marriage. The motion for a new trial contains only the general grounds: Held, that the evidence authorized the verdict finding that there was no common-law marriage; but that there was only a meretricious relationship between the parties, and that the relationship was unlawful in its nature. Peacock v. Peacock, 196 Ga. 441 (26 S.E.2d, 608) Lefkoff v. Sicro, 189 Ga. 554 (6 S.E.2d 687, 133 A.L.R. 738).

Judgment affirmed. Broyles, C. J., and Gardner, J.,concur.

DECIDED DECEMBER 3, 1943. STATEMENT OF FACTS BY MacINTYRE, J. On April 22, 1942, Eula Bryant Roberts filed an application for a year's support from the estate of J. B. (Bud) Roberts, alleging that he died leaving her as his widow surviving. Appraisers were appointed and set aside a year's support to the applicant. Caveats were filed by Mrs. Mamie Wilkerson, Mrs. Mattie Sutton, and J. J. Roberts, children of the deceased, and T. R. Perry, executor of his will. The grounds were substantially the same in each caveat, namely, that the applicant was never married to the deceased and was not his widow. The ordinary found in favor of the caveators. An appeal to the superior court was taken by the applicant. The trial in the superior court resulted in a verdict and judgment in favor of the caveators. The applicant's motion for a new trial was overruled, and she excepted.

The plaintiff testified as follows: "I became Mrs. Eula Bryant Roberts, July, 1939, the latter part. I knew of J. B. Roberts, or Bud Roberts, during his lifetime. As to how many years I lived upon the place of J. B. Roberts, or Joel Roberts, we moved there in the fall of 1922. Yes, sir, we moved on the farm in 1922. I moved there with my father. Yes, sir, he was living at that time. I lived on this property continually from then on. I did not live at the J. B. Roberts, or Bud Roberts, home place then. We were croppers on the place. I moved to the J. B. Roberts home the latter part of July, 1939. At that time Joel Roberts, or J. B. Roberts, was a widower. I knew his wife who had died shortly previous to that time. She was Mrs. Myra Roberts. . . At that time his wife lived in the home with Joel Roberts. No one else lived there; just his wife, Mrs. Myra Roberts, and no one else. She died the latter part of July, 1939. And I went, shortly afterwards, into the home as the wife of Joel B. Roberts. . . In 1939, when I went into the home of Joel B. Roberts, as I have testified to this jury, I stayed there until his death; just as I have testified. As to where Joel B. Roberts died — he died in the hospital in Thomasville. At the time of the death of his first wife, Mrs. Myra Roberts, and as to the condition of Mr. Roberts' health — it was pretty good up till then; but a few days after she died, he taken the flu. When he got through with the flu — it left him with heart disease. He never recovered from that heart disease. It just got worse. After that time, that is, after the death of his wife, Mrs. Myra Roberts, he, Mr. Roberts, was taken with the flu. I nursed him through that illness. I lived with him, but I hadn't moved my things over there just at that time. As to the actual things or acts I did while he was sick with the flu, I gave him all his medicine, bathed him, and done everything I could for him. At that time he was confined to his bed. When he had flu he was helpless as for getting up and going about by himself. He stayed in bed about two weeks. . . During the years thirty-nine, forty, and forty-one, I did things in the home there with reference to putting up stuff in preparation for the fall. I canned fruits and vegetables. I was there doing that. I did the work. As to where I got the jars and cans necessary to put them in, my husband bought them. Joel B. Roberts died in 1942, in January. . . As to when I left the Joel Roberts home after his death in January of this year, I left the next day after he was put away. As to whether I left voluntarily, well they told me I would have to get another place. . . From 1939 on I was sick at times myself. My husband paid my doctor's bills. He paid his own and mine too. I went to a physician with him or at his wish. It was Dr. Huff at Tifton. And he paid those bills himself. I sold a few chickens to get money. They came from the house there. I have no trade or profession, and have no money. After I moved into the home my husband bought my clothing. In 1942, I carried him to the hospital in Thomasville. We went to the hospital in Thomasville. Nobody but Austin Banks went with me up there. That is the ambulance driver here. No other member of the Roberts family other than myself went. They didn't have anything to do with getting him to the hospital, as I know of. They had nothing to do with the selection of the hospital that he was to go to. As to whether I left him from the time I put him in the hospital until he died, well, I left him a little while Friday night. Before I left the home to go with him to the hospital his condition was serious. I mean by serious that he was terribly sick. He had pneumonia and heart disease. He had heart disease and his kidneys were all to pieces. Up until that time I had been waiting on him. As to whether he was in a helpless condition when I carried him to the hospital, confined to his bed all the time — no, sir, not all the time, for he would have to sit up to get his breath. Once and a while he could get up and walk across the room. The day I carried him to the hospital he was not able to get out of the bed then. As to how long it had been before that since he could sit up — well, we would raise him up and he could sit up. I mean I would prop him up when he could not sit up and he would sit up then. I waited on him all that time. I had not had very much rest for a week or ten days before I went to the hospital with him. During the night his condition, with reference to whether I could get any rest or not — well, I could rest a while at night — not very much. I could rest two or three hours. That sleep would be interrupted. Lots of times I would have to get up to give his medicine. When I went into the home in 1939, as I have testified about to the jury, and under the condition I have told about, and as to the sleeping arrangements in the home, and how I slept — well, we had a bed apiece, but we slept together. The kind of bed I moved over there — it was an iron bed. It was a double bed. You understood me to say I occupied the same bed after I moved into the home. I lived there in that home as a wife. I occupied the same bed with him. I performed those duties that a wife ordinarily does with him. I did not live in the home at any time until after Mrs. Myra Roberts died. My husband knew at the time I moved into the home the latter part of July or August of 1939, the conditions under which I came there. He never demurred or backed out from those conditions. As to my attitude toward him, as to how I felt toward him — I loved him. I could tell he loved me as a wife. I bathed him during his last illness. I testified to the jury that during the last week or so of his life he was in a desperately serious condition and confined to his bed; that during times in his nervous condition, he was not able to rest when any one was in the bed with him. I slept in the other room. It was situated so I could hear him when he needed me in the night. My bed was about four or five feet from him. There was no door between us that was shut. There was a door-way out there, but there was no door. Other than at the time he was ill, we all lived together as man and wife after 1939. When Joel B. Roberts died in the hospital in Thomasville no one was with him other than me. No one had been to his bedside other than me and the doctors and nurses who attended him. I paid his hospital bill there. Yes sir, that is the bill I paid to the Archibold Memorial Hospital for the last illness of Joel Roberts. I paid Dr. Hill for has services as a physician to Mr. Roberts. This is the receipted bill that I paid Dr. Hill for services rendered in the last illness of Joel Roberts, that is professional services, as a physician. As to what provision during the life time of Mr. Roberts was made with me with reference to my clothing and necessary things — and as to whether I stinted — I didn't get very much. We were trying to save. I never asked him for anything that he did not give me. After I moved to the home of Joel Roberts, Mr. Roberts and I made trips. We made several trips. Well, on several occasions we went down in Florida. We went down there to see his grandson — my husband's grandson. That was James Roberts, Jesse Roberts' boy. My husband was very, very fond of his grandson. As to whether he left anything with me to be given to that grandson — yes, sir, a watch. I brought that watch back and give it to that boy's father. I gave it to his father to be given to him. His grandson was not at his bedside when he died; nor any of his children. They had not been there silence he was carried to the hospital. Yes, sir, we made other trips, to town and over to my sister's, to Sylvester, Moultrie, and Omega, and to Tifton too; me and my husband. I accompanied him on those trips. Yes, sir, I went with him out of the State of Georgia, besides the trips to see his grandson, which I have testified about to this jury. We went over to Raiford once. Yes, sir, I know his brothers. We went down to see his brother John. We went on Saturday and came back on Monday. While we were there we stayed at his brother's. We slept in the bed together. Me and my husband occupied a bed together in the home of his brother. During these trips of out of the State we stayed over night. We stayed in the room together. We stated in a rooming house in the same room. We slept together. I know what you mean when you ask if I lived with him s a wife. I performed the sexual duties that a wife has with her husband. I testified that in the latter part of July, 1939, I moved in the home of Joel B. Roberts as his wife. I moved into that home on the invitation of Mr. Joel B. Roberts. Yes, sir, he asked me would I move into the home with him as a wife, and I told him I would. I moved into the home in a few days. As to whether anything was said as to how he would treat me — he said. ``Eula, I will make just as good a husband as I can.' and I said, ``I will make you as good a wife as I can.' and we lived up to that. We both lived up to it." She also testified that just before he went to the hospital Bud Roberts gave her around $500, and shortly after his funeral, "I told Jesse Roberts, his son, that I had some money his daddy gave me. He said ``let's divide it and play shut-mouth.' and I divided it up. I had $240: I gave him $240, and I gave him another $120 to fix up the grave. I gave Mamie. a daughter of the deceased, $120, as I wanted her to be satisfied. The reason I did it —: I was scared. My personal belongings had been searched in my absence. No threats were made against me. After Bud Roberts' death a suit' was filed against me by the executor of Bud Roberts' estate in connection with one of his bank accounts. I filed an answer to it. It is signed Eula Bryant because my lawyer told me to sign it just as you all had sued me. I carried a small account in the Bank of Tifton before Mr. Roberts died. As to what name I carried it in — I don't remember. As to whether I carried it in the name of Eula Bryant — I don't know, I signed the cheeks on it. I think I gave Mrs. Wilkerson a check to cash, and signed it Eula Bryant, and that was in less than a year before Mr. Bud Roberts died."

Mr. Gilbert Young, one of the appraisers in the year's support proceeding, testified as to the value of the land set apart, etc. He further testified that he was a neighbor, and had known Bud Roberts since his first wife's death. "Yes, sir, I have seen him and Eula Bryant Roberts together. During the latter part of his life, and almost frequently when I would see one, generally I would see them together. As to whether they lived there in the Roberts" home — I suppose they did. That's where I would see them at. There was no secret about it. I went there a time or two and seen her there. They come up to my home. They come up there to do some' phoning. As to whether they come on just one occasion — I suppose several times in all. As to whether I made any difference in my treatment of them other than what I did as to any other couple that would come to my home — no. They were proper in their demeanor. As to whether they would come into my home — he did; she would stay in the car or around the car. My people were there at home. I knew them. They were neighbors, although I was a little further away from them than some of my neighbors."

Mrs. Frank Bryant testified that she was the wife of the brother of Eula May Roberts, and lived in the same neighborhood as Bud Roberts, and visited Mr. Roberts and Eula May often. "As to what I would see in their actions toward each other — I couldn't tell any more about them than I could any other man and his wife. They demonstrated affection for each other. They were kind to each other. Mr. Robert was always going around hitting her on the shoulders, playing with her. I couldn't tell any difference in them from any other man and his wife. They visited my home. The conditions were the same there. I did not know the sleeping arrangements in the home. I was never in the home at bed time." Mr. Roberts gave her money. She had no other means of support.

Mrs. Mamie Wilkerson testified: "I am a daughter of the late Bud Roberts, Joel B. Roberts. He left three children, me, Mrs. Mattie Sutton, and J. J. Roberts. Eula Bryant had been in and around the place with my father about eighteen years. Most of that time she lived on one of his places. Some times at one farm and some times at another farm. Yes, sir, there was trouble between my father and mother about Eula Bryant and my father. We had a home until she moved there, and then, after that, it wasn't a home. They would go to dances and things like that. My dad and her — they would go to dances, and if he went to the farm she would follow him there, and she would follow him home; everywhere — it was the talk of the neighborhood; and we would talk to him, and we tried to get him to see his mistake but she just kept up a disturbance all the time. I was never able to reason with my father — not much, and my mother told me she would rather have peace and not say anything about it, and I would leave him alone; and some times he would gradually get better, then he got worse and I stayed home and taught school, and during that time he never bought my mother a dress, and part of the time he never even bought groceries, but I got the groceries. Yes, I got food. I taught school. That was not the condition before she came there. We had a happy home, and later he began to have her come in the home, and this was against my mother's wishes; but there was nothing we could do about it, so if my mother was unbalanced, she certainly had a right to be. As to what effect this had on my mother — just as I say, it shortened her life. When she was sick, he wouldn't get a doctor. What I mean is, my mother was seriously sick; what I mean is, he wouldn't get a good doctor. He got just some little doctor, and I couldn't get him to get a doctor; and finally I got one myself, and he said she was in a very serious condition. And this doctor called me off and told me: ``She has got one chance, and that is to get her to the hospital.' And while this doctor was talking to me she come — she had to hear what he said — and she went to my father, and after that we could tell a difference, and he would not send her to the hospital, and I sent her to the hospital myself and paid the bill. I paid the bill myself. We asked my father to send her to the hospital, but he would not do that. . . Eula Bryant then moved up to the house after my mother died. She said she was the housekeeper, and that she received a hundred dollars a year — she told me that in the room there. She told me she was my daddy's housekeeper. My daddy told me he had to have somebody there, and that was who he wanted. He told me he was paying her a hundred dollars a year and her board. Eula Bryant told me the same thing — she played the good side — said that there was nothing between them — she was hired to work — that's what she said." She [Mrs. Wilkerson] made her explanation of why she was not at the hospital during her father's last illness. Among other things she stated that she was pregnant at the time, and the child was born just a few days after her father's death. "As to whether I can tell the jury the circumstances as to how things were around the house after Eula Bryant moved in, after my mother was dead? She was just there working. She didn't do anything except cook; she had a ``nigger' that milked most of the time, and a ``nigger' that washed most of the time. They done the washing. She rode with him; she went with him practically everywhere he went. She rode with him practically everywhere he went. But she told me she was his housekeeper, and said she was getting a hundred dollars a year. After my father died Eula Bryant said something to me about money. I think he was put away on Monday, and I think that it was on about Wednesday night that I got a message that she wanted to see me. I was in bed sick and I asked the messenger: ``What could she want with me?' And he said he thought it was about some money; and I got somebody to stay with the kids and I went to see about it; and I went over there and she come out to the truck and told me that she had some of my dad's money, and she wanted to divide it with me, and I told her, ``all right,' and so she give me twenty dollars and she took twenty, and when we sound up, I had six twenty dollar bills. She sent her brother, Frank Bryant. I told her then, and I told her on several other occasion, that my father had made more money than that, for he had sold fifteen hundred dollars worth of turpentine, and I knew he had more money than the seven hundred dollars in Tifton and this three hundred dollars up here. No, sir, Eula Bryant, before the year's support business was filed down there she did not at any time claim that she was the wife of my father. I never heard tell of it until she hired Mr. Williamson. I never heard of it. She never said a word about it when I buried my father. She never said anything to me about it at any time. She wanted to play the good side of it. . . I say me and my brother stayed continually and constantly after him, that is, my father, about his association with her, I was in and out there all the time. No, I didn't stay after him — I didn't say anything after my mother died. It wasn't any use. As to whether I ever said anything to him about her — well, yes, he told me she was the housekeeper, and he said he had to have somebody there. Well, he just said he was not going to be satisfied in the home with any of the children and he had his housekeeper. No, sir, I never said anything to him about having Eula Bryant in the house there after 1939. I didn't reproach him. I do not know what he did with the money he got from the sale of the turpentine. As to what mortgage it was he paid off — the mortgage is till on the farm. As to whether he paid off a mortgage is till on the farm. As to whether he paid off a mortgage to the Prudential insurance Company for approximately fifteen hundred dollars — he only had one mortgage on the farm and it is still on it. As to whether I am willing to tell this jury that Bud Roberts did not pay off a fifteen hundred dollar mortgage to the Prudential Insurance Company — no, I do not know that. My father did not at any time, either directly or indirectly, refer to Eula Bryant [in my presence] as his wife. He referred to her as his housekeeper." Jesse J. Roberts, the son of the deceased, testified to the same effect as Mrs. Wilkerson, but with more details as to the indiscreet conduct of her father with Eula Bryant before his mother's death.

Austin Banks testified, in effect, that he drove the ambulance that carried the deceased from his residence to the hospital in Thomasville, where he died a few days later; that when he reached the hospital and was securing accommodations for the deceased. the lady at the hospital inquired if there were any of the patient's relatives with him;that he carried Miss Eula Bryant to the lady and the lady said, "Are you his wife?" and she said "No, I am his housekeeper," This was about two days before he died. Mrs. Erhman Young testified that she was a neighbor, and that after Bud Roberts' wife died. Eula Bryant told her that she, Eula, was working for him at $100 per year as housekeeper. McKella testified, in part, that he had been a neighbor of Bud Roberts since 1914; that he was a bailiff and went around over the district and knew people generally in the district; than it was reputed in the district that Eula Bryant was the housekeeper of Bud Roberts, and that he had never heard Roberts refer to her as his wife. "In fact I never heard anybody try to claim that she was Bud Roberts' wife until recently, after he died. I know the general reputation of Eula Bryant in that community; it is bad. I would call it bad." Dr. Sumner testified that he had been practicing medicine in the county for some years; that the deceased was one of his patients; that a short time before Roberts' death, Eula Bryant said she was his housekeeper.

H. D. Roberts, a brother of the deceased, testified that he had been in and around the home of his brother "a whole lot;" that Eula Bryant had been living on the farm of his brother for something like 17 or 18 years; that his brother's relationship with Eula Bryant was a constant source of trouble between him and his wife; that on one occasion, "when his wife saw Eula hugging him, it caused a fuss, and he threatened to beat his wife, and he would have done s if it had not been for his daughter; that he stayed out at his home in 1926, and that Eula just lived out there to catch Bud; that her conduct got so bad that Bud's brothers and sisters hardly went there. He wanted every body to look up to her and lead his folks to. I tried to reason with Bud but did not have a bit of success on top of the earth;" that after Bud's wife died Eula Bryant moved into the house with him. "My wife died in September after Bud's had died in July, and I stayed with him on weekends. No, sir, in all that time I was in the home so much after Bud's wife died and she [Eula] moved in, I never heard Bud refer to her as his wife. Yes, sir, he told me what she was doing there — she did too. He said that she was the housekeeper, and that he was giving her $100 per year and her clothes and board. She said the same thing."

Paulk testified: "I lived about a mile and a half from Bud Roberts. I have known him as long as I can remember. I have known Eula Bryant for 35 years. She is known generally by the name of Eula Bryant. Her reputation in that community where she lives is bad. I base this statement, not only on her conduct in the community with reference to Bud Roberts, but with reference to her conduct with others." Patterson, another witness, testified, in effect, that the reputation of Eula Bryant in the community in which she lived was not good. "What I base my statement on is criticism of her and Bud Roberts."

John Roberts testified for the plaintiff that he was 70 years old, and the brother of the deceased; that he had visited the home of his brother, Bud. in 1940, after his first wife died; that he stayed in the home about six or eight days; that he didn't ask them their arrangement; that he told one of his children that he did not know their arrangement toward one another; that they were getting along all right; that his brother was sick and in bad shape; that she was mighty attentive, and took care of him; that he was under the impression that they occupied the same bed; that later on the same year his brother visited him in Florida, and while there he and Eula Bryant occupied the same room, and that it was his impression that they occupied the same bed; that they came to his home Saturday evening and left Monday morning; that when they were leaving he told him: "That girl's worth a fortune to you. When you get old folks forget about you, and you ought to look out for Miss Eula — she's the best friend you've got." He said: "John, she's the best friend I've got:" that was the last time I saw my brother.

Richard Roberts testified for the plaintiff and said: "I am the youngest brother of Bud Roberts, and looked on him as if he were my daddy. I lived in Florida, and a short time before my brother died, I visited him. While there some of the kinfolks came in, and after they had left, he started talking to me and . . told me what he wanted to do, but he said every time he wanted to do anything some dissension come up with the children. The dissension was in regard to his wife, he said. I mean Eula Bryant Roberts. She was his wife he said. He wanted to make some provision for her. And I said, ``Bud, I am not a very good adviser, but I would make some provision for her.' But before we got into that I asked him how Miss Eula treated him and he said, ``Brother, she washes me, she puts me in bed, and puts on my shoes — if anybody does.' I said, ``Bud, have you made provision for her?' He said ``No,' and I said, ``Well you ought to make some provision for her — you got your children, and you got your second wife — and you ought to make provision for her.' He said she was the best he ever had. He said she was the best wife he ever had."

Purdom, a witness for the plaintiff, testified, in part, that he was cashier of the Sylvester Banking Company; that Joel B. Roberts and Miss Eula Bryant came by the bank about December 11th or 12th and told him that he wanted to open an account and fix it so that if he got disabled, the lady with him could write checks on it. . . "and I told him in that case we would have to fix the account so that it would be payable to J. B. Roberts, Bud Roberts, or Eula Bryant, which he did. . . I wrote on the sheet, ``Pay checks as below,' and Bud Roberts signed his name and so did Eula Bryant, and they went out of the bank; they mentioned they were in a hurry to catch a bus. I wrote then on the ledger sheet — ``Eula Bryant Roberts, wife,' thinking she was his wife, which was mere supposition on my part — he did not tell me that. He told me when he walked up what he wanted was it fixed so Miss Eula could have it at his death. He referred to ``Miss Eula.' . . I had put that statement there without him making any reference to whether she was or was not his wife. He did not tell me that."

There was introduced in evidence a bottle which had on its label, "Prescription No. 2711-D, dated 7-1-41, Cox Drug Company, Tifton, Ga., Miss Eula Bryant, Dr. Zimmerman;" and another bottle which had on its label, "Prescription No. 84893, dated 10-15-40. Eula Bryant. Dr. Huff. Cox Drug Company, Tifton Ga," These bottles were found in the home of Bud Roberts, and identified by Eula Bryant. Both prescriptions appear to have been written by the doctors, and filled by the druggest for Eula Bryant. There is nothing on them to indicate that they were filled for Eula Bryant Roberts, notwithstanding her claim that she was the common-law wife of Roberts, and had been living with him as such since 1939.