In re Danikas' Estate
| Decision Date | 10 November 1924 |
| Docket Number | 10733. |
| Citation | 76 Colo. 191,230 P. 608 |
| Parties | In re DANIKAS' ESTATE. v. CORDAS. RYAN |
| Court | Colorado Supreme Court |
Error to District Court, City and County of Denver; A. F Hollenbeck, Judge.
Application by James Cordas, for probate of the will of Nicholas Demetrius Danikas (Danicks), deceased. Judgment for proponent in district court, and contestant, Frances A. Ryan brings error.
Affirmed.
See also, 72 Colo. 521, 212 P. 490.
John T. Maley and Willard W. Wallace, both of Denver, for plaintiff in error.
William H. Dickson, L. J. Stark, Rothgerber & Appeal, and N.C. Calogeras, all of Denver, for defendant in error.
The plaintiff in error contested the will of one Danicks or Danikas, whose widow by a so-called common-law marriage she claimed to be. Defeated in the Denver county court she appealed to the district court, and was successful. The judgment of the district court was reversed by this court on the ground of insufficient evidence to prove the marriage. Cordas v. Ryan, 72 Colo. 521, 212 P. 490, which should be read herewith. The case has now been retried before another judge, the judgment is against her, and she brings it here on error. Her principal claim is that the evidence compels a judgment in her favor.
By stipulation the evidence in the first trial was used in the second with the addition of the depositions of Alice V. Cronin, a sister of the contestant, and Mary Ryan, her mother. These additions make contestant's case worse rather than better, because they show that she and Danicks agreed to go to French Lick and there have a ceremony performed. True, the witness Cronin varied this tale considerably, but we must assume that the court believed it as above stated. The decisions are that there can be no common-law marriage where the agreement is that the marriage contract shall be by ceremony, and reason supports them. Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737, 2 Am.St.Rep. 105.
A letter from the plaintiff in error to her mother, Mary Ryan, purporting to have been written on the train going to French Lick, announces the marriage, but it is not competent, on her behalf, to prove the marriage (Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451, 15 L.R.A. [N. S.] 190; Cent. Trust Co. v. Culver, 35 Colo. 93, 96, 83 P. 1064), and, so far as competent, is inconclusive. At the most it is competent as part of the res gestae, showing the conduct of herself and Danicks, characterizing their relations and as tending to show her intent. However, Alice Cronin's evidence proves there was no marriage, and so her belief and conduct are immaterial, and, since the only reason claimed for foregoing a ceremony was concealment, the announcement somewhat discredits that reason. Since we reversed a decision in her favor when she made a stronger case, we of course cannot, upon the evidence, reverse a decision against her upon a weaker one.
In the Morgulski Case, 69 Colo. 223, 193 P. 725, a future ceremony was indeed contemplated upon the consent of the wife's father; the marriage contract was in the present. We cannot go farther than that. Cartwright v. McGown, 121 Ill. 398, 399, 12 N.E. 737, 2 Am.St.Rep. 105. If it be claimed that Cronin's testimony can be construed to state a contract like the Morgulski's the answer is that the court has found otherwise.
The counsel for plaintiff in error contends that a contract per verba de futuro cum copula amounts to marriage, and that the evidence of such a marriage in the present case is complete and undisputed. The contention is unsound, because:
(1) The copula is in dispute and the finding is for proponent. There was evidence that Danicks was too ill.
(2) A contract per verba de futuro cum copula does not compel a presumption of marriage when the agreement is that the marriage shall be by a future ceremony. Cheney v. Arnold, 15 N.Y. 345, 69 Am.Dec. 609; Duncan v. Duncan, 10 Ohio St. 181; Peck v. Peck, 12 R.I. 485, 34 Am.Rep. 702. The copula is then illicit and cannot be the basis of a common-law marriage. Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737, 2 Am.St.Rep. 105.
(3) Such a contract never amounts, ipso facto, to marriage. We are not willing to assent to the proposition that verba de futuro cum copula amounts to marriage or ever can do...
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...227, 274 P.2d at 606 (to establish the agreement there must be evidence both of cohabitation and reputation); In re Estate of Danikas, 76 Colo. 191, 194, 230 P. 608, 610 (1924) (illicit cohabitation will not support reputation as proof of marriage; reputation alone is not enough); Smith v. ......
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