HomeMy WebLinkAbout0100 Florida, ?41.211 F.S.A.~ In 19?9 the decedenL and Rachel
Padgett took an automobile trip together into Ceorgia,
Ohio and Pennsylvania, spending a total of about 2 weeks in
these states, each of which recognizes common-law marriage.
Rachel Padget maintains that her cohab~tation in these states
with the decedent established a common-law marriage although her
deposition indicates that this was a vacation trip only without
any residence or domicile of any permanency in either states.
There is no testimony in her deposition of any cohabitation
and repute in the community or any agreement between her and
the decedent per verba de praesenti to be husband and wife in
either Georgia, Ohio or Pennsylvania, such evidence being nec-
essary to establish a common-law marriage. Phillips v Phillips
(1968 Fla App) 215 So. 2nd 83. Rachel Padgett has filed an
Affidavit in opposition to the blotion for Summary Judgment in
which she attempts to set forth transactions and communications
between herself and the decedent in Ohio, Georgia and Pennsylvania
during said automobile trip resulting in a common-law marriage
between them. At the hearing on the Motion for Summary Judgment
the Court deni~d a~otion to strike this Affidavit. Upon re-
flection however, it appears that this Affidavit is in clear
violation of the Dead ~an's Statute, 90.05 F.S.A., and should
not be considered by the Court in ruling upon ~he Motion for
Summary Judgment. ~ee In Re Silverman's Estate (Fla. App. 1964)
163 So. 2nd. 321. The Dead lian's Statute was not waived by the
Personal Representative in taking the deposition of Rachel Padget.
To hold otherwise would inhibit the liberal discovery rights had
by all litigants under the Florida Rules of Civil Procedure and
would effectively prohibit discovery in any case turning upon
the Dead Man Statute.
This file is replete with facts tending to establish that ~
neither the decedent or Rachel Padget ever considered themselves ~ 3
as husband and wife, either by common-law marriage or formal mar-
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