In re Reeves' Estate

• Decision Date: 02 February 1943
• Docket Number: 2237
• Citation: 58 Wyo. 432,133 P.2d 503
• Parties: IN RE REEVES' ESTATE; v. HAYWARD ET AL BERG
• Court: Wyoming Supreme Court

133 P.2d 503

58 Wyo. 432

IN RE REEVES' ESTATE;

BERG v. HAYWARD ET AL

No. 2237

Supreme Court of Wyoming

February 2, 1943

APPEAL from the District Court, Lincoln County; H. R. CHRISTMAS Judge.

Proceeding in the matter of the estate of Sarah Jane Reeves, deceased also known as Jennie D. Reese Reeves, deceased, wherein Swan Berg claimed to be surviving husband of deceased and entitled to letters of administration of her estate and to homestead right, opposed by Gam H. Hayward, and others. From an adverse judgment, Swan Berg appeals.

Affirmed.

For the appellant, the cause was submitted on the brief of Ivan S Jones of Kemmerer.

The finding of the trial court that the marriage between Swan Berg and Sarah Jane Davis was meretricious is not supported by evidence. There is no evidence that Berg knew of the former marriage to Reeves. A verdict unsupported by evidence will be set aside. Fieldhouse v. Leisberg, 15 Wyo. 207. If the finding be supported by substantial evidence it will be sustained. Peoples Finance v. DeBerry, 62 P.2d 307; Kaleb v. Modern Woodmen, 51 Wyo. 116. The general rule is that a finding unsupported by evidence will be vacated on appeal. Stringfellow v. Botterill Auto Co. (Utah) 221 P. 861; Peters v. Taylor (Ariz.) 251 P. 446; Mahaffey v. McNicoll (Ida.) 244 P. 401; Watkins Co. v. Waldo (Kan.) 230 P. 1051. Swan Berg entered into the marriage in good faith. 18 R. C. L. 436. There is nothing in the case of Weidenhoft v. Primm, 16 Wyo. 340 that applies to the present case. The evidence shows that the conduct of the parties constituted at least a common law marriage after the death of Reeves. White v. White (Calif.) 7 L. R. A. 799. Appellant under the evidence is entitled to the homestead. 18 R. C. L. 436. The Wyoming Statutes, Sec. 69-101, R. S. defines marriage. This identical provision has been held in many courts to validate common law marriages. Love v. Love (Okla.) 142 P. 305; State v. Zichfield (Nev.) 46 P. 802; Meister v. Moore, 96 U.S. 76; Becker v. Becker (Wis.) L. R. A. 1915E, p. 8; Connors v. Connors, 5 Wyo. 433; In re Kiesel, 35 Wyo. 300. The cases are determined upon the intention of the parties as shown by the evidence. Smith v. Reed (Ga.) L. R. A. 1917A, 492; Clark v. Clark (Nev.) 189 P. 676. There is a strong presumption in favor of the legality of every marriage. Tittle v. Raish (Ia.) 90 N.W. 66; Wenning v. Teeple, 41 N.E. 600; Meister v. Moore, supra. Appellant is entitled to the homestead. Article XIX, Sec. 9, State Constitution; Sec. 88-101; 88-2904; 88-3001; 88-1701, R. S. 1931. Appellant was entitled to letters of administration as surviving common law spouse. Love v. Love (Okla.) 142 P. 305; Lavery v. Hutchinson (Ill.) 94 N.E. 6.

The cause was submitted for respondents upon the briefs of P. W. Spaulding of Evanston and J. A. Christmas of Kemmerer.

This action involves a pretended marriage between Sarah Jane Reeves, now deceased, and appellant. The evidence clearly shows that Sarah Jane Reeves had a living husband at the time of her attempted marriage to appellant. Appellant's counsel contents himself with a few citations on conflicting evidence. There are a multitude of pertinent expressions in the decisions of this court on this subject. The following are in point: Kaleb v. Woodmen, 64 P.2d 606; Dinkelspeel v. Lewis, 62 P.2d 294; Rienecker v. Lampman, 96 P.2d 561; Yellowstone Sheep Co. v. Ellis, 96 P. 901. These cases all cite the rule that where there is substantial evidence to support the judgment, it will not be disturbed on appeal. Appellant had three opportunities to explain why, if decedent was the woman he married, she used the name Sarah Jane Davis, but he offered no explanation. Studebaker v. Hanson, 24 Wyo. 222. This appeal presents two questions: What are the elements necessary to constitute a so-called common law marriage? Is such marriage recognized by our statute? An examination of cases cited by appellant will show that they have been influenced by the necssity of protecting an injured innocent party or the legitimacy of the children. In this case there was no contract between parties competent to marry nor good faith. The case of Weidenhoft v. Primm, 16 Wyo. 340 seems to be on all fours with the case at bar. In the Willis case, 48 Wyo. 403, this court cited authorities containing approved definitions of common law marriages, none of which apply to the facts in the case at bar. In the Willis case this Court left open the question whether a common law marriage is valid in this state. In the case of Huard v. McTeigh (Ore.) 232 P. 658, the Court gives judicial construction to a statute like Section 68-106, W.R.S. 1931, and holds that while a license and certificate of health are required, the formation of a common law marriage is against public policy. Hall v. Commission (Wisc.) L. R. A. 1917D, 829; Utah Fuel v. Industrial Commission (Utah) 234 P. 697; 71 C. J. 541. It is respectfully submitted that on the record in this case the judgment of the trial court should be affirmed.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

In this case one Swan Berg claimed to be the surviving husband of the deceased and entitled to letters of administration of her estate and to a homestead right in the ranch property of the deceased in Lincoln County, Wyoming. The court held that he is not the surviving husband of the deceased and entered judgment against him. From this judgment he has appealed. He will hereinafter be referred to as the appellant.

The facts, sufficient for the decision in this case, appear in the agreed statement of facts of the parties herein, as follows: On January 2, 1926, the deceased was married to John Reeves, at Pocatello, Idaho, by a probate judge of Bannock County, Idaho, pursuant to a license issued by the county recorder of Bannock County, Idaho. No divorce was ever granted between these two. On May 25, 1933, the county recorder of Bonneville County, Idaho, issued a marriage license authorizing the marriage of the appellant to the deceased, therein named Sarah Jane Davis, her maiden name. Pursuant to such license, on the same day, a probate judge of Bonneville County performed a marriage ceremony uniting the appellant and deceased. This last marriage license was returned to the county recorder of Bonneville County, Idaho with the marriage certificate of said probate judge thereto annexed, and duly recorded in his office by said recorder. John Reeves died April 8, 1935, nearly two years after the date of the marriage between Sarah Jane Davis, above mentioned, and appellant. From May 25, 1933, appellant and deceased lived and cohabited together as husband and wife, with marital intent, and held themselves out, as husband and wife, to the public, their friends, neighbors and relatives. Their joint home, except for a short time immediately following their marriage, was on the ranch lands of the deceased situated in Lincoln County, Wyoming, and consisting of 354.28 acres, which the appellant cultivated and improved as an owner would do. On June 2, 1938, the deceased...