Estate of Murdock

• Court: Pennsylvania Superior Court
• Writing for the Court: KELLER, J.
• Citation: Estate of Murdock, 92 Pa.Super. 275 (Pa. Super. Ct. 1928)
• Decision Date: 02 March 1928
• Docket Number: 381-1927
• Parties: Estate of Robert Murdock -- Appeal of Margaret Raisner

92 Pa.Super. 275

Estate of Robert Murdock -- Appeal of Margaret Raisner

No. 381-1927

Superior Court of Pennsylvania

March 2, 1928

Argued December 13, 1927

Appeal by administratrix from decree of O. C. Philadelphia County-1926, No. 1250, in the estate of Robert Murdock.

Exceptions to adjudication. Before Stearne, J.

The facts are stated in the opinion of the Superior Court.

Exceptions dismissed. Administratrix appealed.

Error assigned was the decree of the court.

Reversed.

George P. Orlady, and with him Paul C. Hamlin, for appellant. -- Definite words of mutual acceptance are necessary to establish a marriage contract: Nathan's Case, 2 Brewster 149; Vincent's Appeal, 60 Pa. 236; Greenawalt v McEnally, 85 Pa. 352; Drinkhouse's Estate, 151 Pa 294; Luce's Estate, 3 Pa.Super. 289; Comly's Estate 185 Pa. 210; Hines' Estate, 10 Pa.Super. 124; McCausland's Estate, 213 Pa. 189; Knecht v. Knecht, 261 Pa. 410; Craig's Estate, 273 Pa. 530.

Herbert L. Maris, and with him Edward J. Kirchner, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

KELLER, J.

Appellee claims that the decedent was her husband; and the lower court has disallowed the credit taken for payment of collateral inheritance tax and awarded her the entire net balance of his estate on account of her claims for $ 500 exemption and $ 5,000 allowance. It is admitted that no marriage ceremony was ever performed and the evidence as to cohabitation and reputation is conflicting. A number of witnesses testified on behalf of the appellee that she and the decedent lived together in the apparent relation of man and wife for a number of years, that they were reputed to be such in the neighborhoods in which they lived or boarded together, that goods were furnished her and charged against her as his wife, and that he had introduced her as his wife to many of their friends and acquaintances; though she admitted that he introduced her to his mother as his sweetheart, and that the old lady never had been informed that they were married, and that at the places where she had worked since her marriage, a laundry and Wanamaker's Store, she had been known as Elsie Hatcher, the name of her former husband from whom she had been divorced on February 23, 1915. On the other hand, it was shown that the decedent was registered as a single man living with his mother or sister, (the administratrix and heir at law), where it was alleged he maintained his residence and voted in that district; that he passed as a single man and was known as such by his relatives and friends and by his superiors in the Philadelphia Fire Department and the officials of the Philadelphia Fire Department Relief Association, the death benefits from which formed the principal part of his estate. It was also shown that the appellee was registered and had voted under the name of Hatcher.

Notwithstanding the divergent testimony, there was probably sufficient evidence, if believed, to sustain a presumption and a consequent finding that the parties were married, if the evidence had been confined to cohabitation and reputation. But the claimant testified to the precise form of the contract of marriage between her and the decedent, and by this she must stand or fall. If the alleged conversation constitutes a contract of marriage, evidence of cohabitation and reputation is received in corroboration of her testimony that a marriage contract was in fact entered into. But if she herself proves that no valid marriage contract was actually entered into between them, evidence as to cohabitation and reputation goes for nothing: Tholey's App., 93 Pa. 36, 38; Grimm's Est., 131 Pa. 199, 202, 18 A. 1061. As was said by our Supreme Court in Bisbing's Est., 266 Pa. 529, 531, 109 A. 670, re-affirming Hunt's App., 86 Pa. 294, 297, " Cohabitation and reputation are not marriage; they are but circumstances from which a marriage may be presumed, but such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage in fact had taken place." In that case there was even stronger evidence of that general reputation and cohabitation consistent with the marriage relation referred to as necessary in Patterson's Est., 237 Pa. 24, 85 A. 75, -- that constancy of dwelling, and habit and repute mentioned in Yardley's Est., 75 Pa. 207, 211, 212, -- than here, yet it amounted to nothing as against the evidence of the woman herself establishing that no marriage had in fact taken place.

The testimony of the claimant as to the alleged contract of marriage was as follows: " In 1916 I was living then at a fireman's house; the fireman died and it became necessary that the home be broken up. I had two children to support by a former marriage at that time, and I was rather worried and Mr. Murdock had expressed his feeling to me and I also to him at that time, and I really was sick at the time also and I was not able to work. So we decided, or he decided that he had his mother to keep and she was an awful burden on him at the time, and he thought perhaps he would be able to stay at the sister's house where they then resided; that was in West Philadelphia. He proposed to me would I take him, he asked me did I care for him and I told him I did and I really did, I was sincere. He asked me would I take him and accept him on those terms, he felt if his mother ever found out that there was a marriage contract it would kill her . . . . He said, 'Will you be good to me?' I said, 'Yes, I will do everything that a wife is supposed to do.' Well, we just decided then to say we were married and let it go at that." Her subsequent statement on cross-examination, " My only marriage contract was contracted verbally with Mr. Murdock; then we both agreed and entered in that state of man and wife," is evidently only her present explanation of the effect of the conversation between them before quoted.

Do the words testified to by her, as before stated, constitute a valid contract of marriage? In Hantz v. Sealy, 6 Binn. 405, 408, Chief Justice Tilghman said: " The judge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time without regard to form. He told them also, that in his opinion the words proved did not constitute a marriage, and in this I agree with him." In that case the woman believed herself married, but the marriage was void because the man had a wife living at the time. After a divorce had been secured by the man's legal wife, a lawyer advised the two to celebrate a new marriage. The man said, " I take you for my wife," and the woman on being told that if she would say the same thing the marriage would be complete, answered, " to be sure he is my husband good enough." Chief Justice Tilghman says of this, " Now these words of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage . . . . what was done was too slight and too equivocal to establish a marriage."

This was followed by Com. v. Stump, 53 Pa. 132, where the woman swore that " about thirty-one years since she went to the house of Abraham Stump to live with and keep house for him, under a mutual promise and agreement that they would sustain towards each other the relation of husband and wife, and that they did thus live and cohabit together." The Supreme Court said (Woodward, C. J.) " In our opinion, this was not proof of a marriage in fact. Marriage is in law a civil contract, and does not require any particular form of solemnization before officers of church or state, but it must be evidenced by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife." In Tholey's App., 93 Pa. 36, 38, the court said: " In civil cases, reputation and cohabitation are admitted as evidence of an actual marriage, not as constituting themselves a legal marriage . . . . When, however, we have the testimony of one of the parties as to the terms of the contract, and that shows that there was no contract by words in presenti, all other evidence on the subject is of no importance."

This was recognized to be the law of Pennsylvania by the Supreme Court of the United States. See Patterson v. Gaines, 6 Howard 550, 587; Maryland v. Baldwin, 112 U.S. 490, 494, where the court said, (Field, J.): " As the case must, for this error, go back for a new trial, it is proper to say that, by the law of Pennsylvania, where, if at all, the parties were married, a marriage is a civil contract, and may be made per verba de praesenti, that is, by words in the present tense, without attending ceremonies, religious or civil." See also, Travers v. Reinhardt, 205 U.S. 423, 438, 51 L.Ed. 865, 27 S.Ct. 563.

The rule has been adhered to in more recent cases. In Stevenson's Est., 272 Pa. 291, 300, 116 A. 162, speaking through Mr. Justice Kephart, the court said: " Marriage is a civil contract by which a man and a woman agree to take each other for husband and wife during their joint lives unless it is annulled by law, and to discharge toward each other the duties imposed by law upon such relation. Each must be capable of assenting and must in fact consent to form this new relation . . . . Those who, with a clear understanding of what the laws require, embark in undertakings such as those found by the court below, must abide by the consequences of their acts. The court will not relieve them unless it plainly appears there was an actual agreement to form the legal relation of husband and wife." In Craig's Est., 273 Pa. 530, 533, 117 A. 221, speaking through Mr. Justice Frazer, the court said: " These principles are well settled. ...