Berger v. Kirby

• Decision Date: 26 February 1913
• Citation: 153 S.W. 1130
• Parties: BERGER v. KIRBY et al.
• Court: Texas Supreme Court

153 S.W. 1130

BERGER v. KIRBY et al.

Supreme Court of Texas.

February 26, 1913.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Mary Berger against M. D. Kirby, individually, and as administratrix of the estate of M. W. Kirby, deceased, and others. From a judgment of the Court of Civil Appeals (135 S. W. 1122) in favor of defendants, plaintiff brings error. Affirmed.

See, also, 140 S. W. 334.

Parks, Patton & Plowman, Etheridge & McCormick, and Thomas & Rhea, all of Dallas, for plaintiff in error. Ed Sewell and Barry Miller, both of Dallas, for defendants in error.

BROWN, C. J.

This suit was instituted by Mary Berger against James Smith, individually, and as administrator of the estate of A. Berger, deceased, and against M. D. Kirby, individually, and as administratrix of the estate of M. W. Kirby, deceased, and against a number of other persons not necessary to mention, as the case depends upon the right of plaintiff, as surviving wife of A. Berger, to the property of said estate. A. Berger was a widower (unless Mary Berger was his wife), and died in Dallas, Tex., leaving as his heirs a brother and some other relatives, whose names are unimportant. Decedent left a considerable estate, and owed some debts. There was a contest over the granting of letters of administration, Mary Berger claiming to be the surviving wife of deceased, but waived her right to administer; and letters were granted to James A. Smith.

To decide the issues of law upon which the case, as before this court, depends does not require a full statement of the facts, but only those facts upon which plaintiff rests her claim to have been the wife of A. Berger; for if there was material error in the charge of the court upon that question, or if there was error in excluding testimony offered to prove the marriage, the judgment should be reversed, otherwise it must be affirmed.

Mary Berger claimed that she had been servant to A. Berger; and, after his wife's death, he and plaintiff made an oral contract to be husband and wife, and that they lived together as husband and wife to the death of A. Berger. Upon the trial, plaintiff, being upon the witness stand, offered to testify, in substance, "that, four days after the death of A. Berger's first wife, she and A. Berger agreed to live together as man and wife, agreed to be man and wife, just as he and his former wife, Josie Ramarez Berger, had been, and thenceforth they were husband and wife until the day of the death of A. Berger." The objection made is not stated in the application; but the court excluded the evidence. There was much evidence on the various issues; but it is unnecessary to recite it here.

The judge charged the jury as follows: "A common-law marriage is valid in this state; and the issuance of a marriage license or marriage ceremony is not necessary to constitute a common-law marriage. A common-law marriage exists when a man and woman enter into an agreement to become husband and wife, and, in pursuance of such agreement, do live together and cohabit as husband and wife, and hold each other out to the public as husband and wife. Such agreement to become husband and wife may be express or implied. An express agreement is where the parties thereto expressly agree; and an implied agreement is where the parties with reference to the subject-matter is such as to induce the belief, in the minds of the contracting parties, that they intend to do that which their acts...