IN RE THE ESTATE OF JIMMY L. SMITH
Session August 10, 2017
from the Probate Court for Monroe County No. 2014-149 Dwaine
appeal, the trial court determined that the woman who claimed
to be the decedent's common law wife had failed to
establish her status as his wife and heir. The alleged widow
asserts that she presented satisfactory evidence to prove
that she was the common law spouse. As modified, we affirm
the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Court Affirmed as Modified; Case Remanded
Burns, Madisonville, Tennessee, pro se.
B. Ward and Doris Matthews, Madisonville, Tennessee, for the
appellee, Cora Davis, Personal Representative for the Estate
of Jimmy L. Smith.
W. McClarty, J., delivered the opinion of the court, in which
Charles D. Susano, Jr, and Thomas R. Frierson, II, JJ.,
W. MCCLARTY, JUDGE.
L. Smith ("Decedent") died a
resident of Monroe County, Tennessee on November 20, 2014.
Decedent left no will. Debbie Burns, who claimed to be
Decedent's common law wife, was appointed personal
representative and opened an estate for Decedent on January
8, 2015. One of Decedent's sons, Jimmy L. Smith, Jr.,
objected to the appointment of Ms. Burns
and authorized Cora Davis, Decedent's sister, to appear
on his behalf. Ms. Davis filed a motion to set aside the
appointment of Ms. Burns as personal representative on
February 3, 2015, asserting "that, to the best of her
knowledge, the deceased and Debbie Burns were never married
and that [Ms. Burns], therefore would not have first priority
to serve as administrator." Decedent's son, Jimmy L.
Smith, Jr., also submitted a response in which he stated that
"[t]o the best of his knowledge, his father . . . was
never married to Debbie Burns . . . ."
September 14, 2015, almost ten full months after
Decedent's death and eight months after her appointment
as personal representative in Tennessee, Ms. Burns filed a
Petition for Declaratory Judgment of Common Law Marriage in
Charleston County, South Carolina, the former domicile of
couple. Unlike Tennessee, South Carolina is a jurisdiction
that recognizes the validity of a marriage despite a
couple's noncompliance with statutory ceremony and
license requirements. The state of South Carolina allows
claimants the opportunity to convince the trier of fact that
a common law marriage exists. South Carolina has codified the
common law marriage doctrine in section 20-1-360 of the South
Carolina Code, which states that the failure to obtain a
marriage license would not render a marriage illegal. S.C.
Code Ann. § 20-1-360.
Petition for Declaratory Judgment of Common Law Marriage
before the South Carolina Probate Court, Ms. Burns argued,
inter alia, the following:
(a) she and Decedent were aware of the common law marriage
requirements in South Carolina; (b) she and Decedent entered
into an implied contract to be married in 1986, thus
establishing their common law marriage by this implied
contract, cohabitation as husband and wife, and holding
themselves out as being married to their family, friends, and
the community; (c) in 1988, she and Decedent applied for a
South Carolina marriage license, but the marriage was not
solemnized because a minister could not be found to marry
them due to this being their second and third marriages,
respectively; (d) she and Decedent received mail as husband
and wife and paid utilities as husband and wife; (e) she and
Decedent filed joint tax returns as husband and wife in 1987,
and in subsequent years chose to file married filing
separately; (f) she is recognized as Decedent's spouse by
the Social Security Administration and is receiving survivor
benefits since Decedent's death as of February 2015; (g)
she and Decedent did live and cohabitate as man and wife,
held themselves out to the world as man and wife, and
acquired a reputation within the community in which they
resided as husband and wife; (h) she and Decedent opened
joint bank accounts as husband and wife in Charleston County,
South Carolina; (i) in 1993, Decedent was involved in a legal
action in Monroe County and averred in the complaint
"[t]hat [at] all times [material] hereto the Plaintiffs
Jimmy Leon Smith and Debbie Faye Smith were and are husband
and wife"; (j) In 1996, Decedent deeded a parcel of land
to Ms. Burns as his wife, and in the case of State of
Tennessee ex rel. Linda Smith, an action for child
support, the trial court found that Decedent conveyed a
parcel of land to "his current wife, " Debbie F.
Smith in order to avoid attachment from child support; and
(k) she demonstrated the devotion to the usual duties and
responsibilities of a wife, buying groceries, driving
Decedent to and from work, arranging their meals, caring for
Decedent in sickness and in health, displaying photographs of
themselves and family in their home, and entertaining others
in their home.
Burns requested a declaratory judgment "that the common
law marriage of Petitioner and Decedent was, and is, valid
and existing, and that Petitioner and Decedent were husband
reviewing the evidence presented by Ms. Burns, the South
Carolina Probate Court held on February 2, 2016, that
"Petitioner has shown that she and the Decedent
consistently held themselves out to the community as husband
and wife and that they intended to create a spousal
relationship while they resided together in Charleston
County, South Carolina" from 1986 to 1991.
(Emphasis added.). The court specifically held that Ms. Burns
"submitted sufficient evidence to support the arguments
she made in her Petition" and decreed that pursuant
to South Carolina law, Ms. Burns "was the common law
spouse of the Decedent . . . and . . . entitled to all
spousal rights as an heir . . . ." (Emphasis
added.). The South Carolina court noted that Decedent's
sons had failed to appear at the hearing. Ms. Davis did not
make an appearance and accused Ms. Burns of "forum
recognizing that South Carolina law must be applied to
determine if Ms. Burns was Decedent's common law spouse,
the Monroe County Probate Court did not feel compelled to
accept the ruling of the South Carolina court on the issue.
Instead, in an order entered October 25, 2016, the court made
the following findings of fact and law:
Title 20 of the South Carolina Code requires four elements to
be shown to prove common law marriage to have occurred: 1.
Legally free to marry under present law; 2. Co-habitation for
a period of time; 3. Intent to be married; and 4. Reputation
as a married couple. In this case no proof has been presented
that would lead this Court to believe that the Parties were
not free to marry. It is also undisputed that the parties did
co-habitate for a number of years[;] however, at the time of
Mr. Smith's death, and for a number of years preceding
his death, they were not co-habitating.
The issue of intent to be married is somewhat more
troubling. Petitioner Burns testified it was her intent
to be married. Petitioner Davis argues that the "Dead
Man['s] Statute" would prohibit Ms. Burns from
providing testimony about the expressed intentions of Mr.
Smith to her. The Court finds that the "Dead Man['s]
Statute" does in fact prohibit the testimony of any
expressed intentions of Mr. Smith to Ms. Burns as it would be
testimony of a party opponent in regard to a transaction
directly effecting the pecuniary interests of the testifying
party opponent.See Pritchard on Wills and
Administration of Estates, Seventh ...