Hunter v. Whitaker

• Citation: 237 P.2d 150,205 Okla. 246
• Decision Date: 30 October 1951
• Docket Number: No. 34461,34461
• Parties: HUNTER et al. v. WHITAKER.
• Court: Supreme Court of Oklahoma

Page 150

237 P.2d 150

205 Okla. 246

HUNTER et al. v. WHITAKER.

No. 34461.

Supreme Court of Oklahoma.

Oct. 30, 1951.

Syllabus by the Court.

Where the evidence discloses that a man and woman lived and cohabited together as husband and wife from 1923 to the time of the death of the woman in 1948, during which period of time they mutually held themselves out to the general public as husband and wife, and during such period of time when a policy of burial insurance was procured by the woman, she, in the application, listed the man as her husband, held: that where the trial court finds from such facts and circumstances that a common-law marriage existed between the parties, such judgment is not clearly against the weight of the evidence.

Primus C. Wade, Tulsa, Rogers & Rogers, Gainsville, Mo., for plaintiffs in error.

Hickman & Hickman, Tulsa, for defendant in error.

PER CURIAM.

The plaintiff sued Ed Hunter, administrator of the estate of Dessie Bowens, deceased, and the heirs of said decedent to establish a resulting trust in real property held in the name of Dessie Bowens, and to establish the existence of a common-law marriage between himself and the said Dessie Bowens. From a judgment in favor of the plaintiff defendants appeal. For assignments of error the defendants complain the evidence of plaintiff was insufficient to withstand their demurrer, that it was not sufficient to establish a common-law marriage between said Carl Whitaker and Dessie Bowens, and that the judgment is against the weight of the evidence. They also complain that the plaintiff was not a competent witness.

The evidence is uncontroverted that plaintiff and the said Dessie Bowens lived in the same house from 1923 to the time of her death in 1948. It was clearly established that they lived and cohabited together as husband and wife for such period of time and held themselves out as husband and wife. The property in question was accumulated by their joint efforts. When, during such cohabitation, the decedent purchased a policy of burial insurance she listed the plaintiff as her common law husband. The defendants contend the plaintiff was incapable of contracting the common-law marriage because of the existence of a living wife he had previously acquired by a common law marriage. This alleged living wife was offered as a witness by the defendants. She testified that she and the plaintiff never agreed to be husband and wife. She admitted she and the plaintiff had lived together...