In re Roberts' Estate, 2253

• Citation: 58 Wyo. 438,133 P.2d 492
• Decision Date: 02 February 1943
• Docket Number: 2253
• Parties: IN RE ROBERTS' ESTATE; v. ROBERTS ROBERTS ET AL.
• Court: United States State Supreme Court of Wyoming

133 P.2d 492

58 Wyo. 438

IN RE ROBERTS' ESTATE;

ROBERTS ET AL. v. ROBERTS

No. 2253

Supreme Court of Wyoming

February 2, 1943

APPEAL from the District Court, Natrona County; C. D. MURANE, Judge.

Proceeding in the matter of the estate of Ora P. Roberts, deceased wherein Oda Roberts, and others, filed a petition to determine heirship and wherein Barbara Roberts filed a claim. From the judgment, Barbara Roberts appeals.

Affirmed.

For the appellant there was a brief and an oral argument by R. R Rose of Casper.

The common law relating to marriages is applicable in Wyoming and marriages valid under the common law are valid here. Chapter 81, Laws 1876; 68-101, R. S. 1931; State v Zichfeldt, 46 P. 802; Weidenhoft v. Primm, 16 Wyo. 340; Willis v. Willis, 48 Wyo. 401; Meister v. Moore, 24 L.Ed. 826; Taylor v. Taylor, 50 P. 1049; Renfrow v. Renfrow (Kan.) 56 P. 534; Furth v. Furth, 133 S.W. 1037; Wilmington Trust Co. v. Hendrixson, 114 A. 215; Godfrey v. Rowland, 16 Haw, 377; Com. v. Munson, 127 Mass. 459; Huard v. McTeigh, 232 P. 656; Woodward Iron Co. v. Dean (Ala.) 117 So. 52; In re Gabaldon's Estate, 34 P.2d 672. General reputation in the community of the relationship of husband and wife is not essential to the validity of a common law marriage. In re Peters (Colo.) 33 A. L. R. 24; Davis v. Stauffer, 132 Mo.App. 555; Chaves v. Chaves (Fla.) 84 So. 672; Hulett v. Carey (Minn.) 69 N.W. 31; Brooks v. Hancock, 256 S.W. 296; Grigsby v. Reib (Tex.) 153 S.W. 1124; Davis v. Pryor, 112 F. 274; Cartwright v. McGown, 12 N.E. 373; Robinson v. Robinson, 58 N.E. 906; Taylor v. Taylor, 50 P. 1049; Scott v. Scott, 252 S.W. 1019; Larimer v. Larimer, 83 N.W. 609; State v. Worthingham, 23 Minn. 528; Taylor v. State, 52 Miss. 84; Maryland v. Baldwin, 28 L.Ed. 822; Sorensen v. Sorensen, 100 N.W. 930. The law regards those as married, in the absence of a contrary showing, who hold themselves out by their words and conduct as man and wife. Scott v. Scott, 252 S.W. 1019; Brook v. Hancock (Tex.) 256 S.W. 296; 38 C. J. 1316; People v. Spencer, 165 N.W. 921. Facts proven in the instant case raise a conclusive presumption of marriage. 38 C. J. 1321; Kilpfel v. Kilpfel, 92 P. 26; Gordon v. Gordon, 119 N.E. 312; Bickling's App. 32 Brewst. 232. Reputation evidence supports marriage relation between appellant and decedent. Weidenhoft v. Primm, 94 P. 453. A fact testified to by disinterested witnesses and not substantially contradicted or disputed must be taken as a fact established, and a judgment rendered in disregard of it should be reversed on appeal, where the fact is of such character that the judgment is contrary to the evidence. 20 Amer. Juris. 1030, Sec. 1180; Moyle v. Hocking (Colo.) 51 P. 533; Newton v. Pope (N. Y.) 1 Cow. 109; Peter v. Wright, 6 Ind. 183; Bank v. Donald (Minn.) 58 N.W. 269; Spring v. Millington, 90 N.Y.S. 152; Comm. v. Pendleton (Ky.) 66 A. L. R. 1526; In re Miller's Will (Ore.) 90 P. 1002; Cotlett v. Chestnut, 91 A. L. R. 212; Ting v. United States, 35 L.Ed. 5011; Walker v. Henderson, 95 S.E. 337; 20 Amer. Jur. Sec. 1180. The facts in the case at bar are essentially different from those in cases previously decided by the Supreme Court. Weidenhoft v. Primm, 16 Wyo. 340; Willis v. Willis, 48 Wyo. 403. There was prejudicial error in adverse rulings upon the admissibility of evidence and offers of proof. Eldred v. Eldred, 34 S.E. 477; Willis v. Willis, 48 Wyo. 403; People v. Spencer, 165 N.W. 921. Each case must be decided upon its own facts. We believe that the evidence in the case warrants a reversal of the judgment of the trial court.

For the respondents, there was a brief by Hagens & Wehrli of Casper, and oral argument by G. R. Hagens.

The trial court is the judge of the weight to be given the evidence. Gould v. Jones, 43 Wyo. 161; State v. Luckuck, 44 Wyo. 218; Wettlin v. Jones, 32 Wyo. 446; Worland v. Davis, 31 Wyo. 108. Preponderance of evidence is not established solely by the number of witnesses. Montgomery v. Empey, 36 Wyo. 37; Williams v. Yocum, 37 Wyo. 432. The burden of proving marriage is upon the party who asserts it. 38 C. J. 1321. Reputation and holding out are not of themselves sufficient to establish the marriage relation. Weidenhoft v. Primm, 16 Wyo. 340. Marriage is more than a civil contract. Hess v. Pettigrew, 247 N.W. 90; Van Kooten v. Van Kooten, 154 N.E. 146. Where the legislature has prescribed the steps necessary to consummate marriage, other methods are excluded. Town of Salisbury v. Water Supply Co. (Mass.) 181 N.E. 194; Huard v. McTeigh (Ore.) 232 P. 658; Wilmington Trust Co. v. Hendrixson (Del.) 114 A. 215. The Wyoming legislature has outlined its policy against so-called common law marriage. Secs. 68-101, 2, 4. A license has always been required. Secs. 68-107-8, 114, R. S. 1931. A common law marriage is unknown under the laws of Wyoming and the same rule prevails in other jurisdictions. In re McLaughlin's Estate (Wash.) 30 P. 651; Re Gabaldon's Estate (N. M.) 34 P.2d 672. A marriage must be solemnized. 18 R. C. L. 400; Edgewater Coal Co. v. Yates (Ky.) 87 S.W.2d 596; Furth v. Furth (Ark.) 133 S.W. 1037; Norman v. Norman (Cal.) 54 P. 143; Wilson v. Cook (Ill.) 100 N.E. 223; Denison v. Denison, 35 Md. 361; Commonwealth v. Mureson, 127 Mass. 459; Schumacher v. Ry. Co. (N. D.) 136 N.W. 85; Smith v. Savings Bank (Tenn.) 89 S.W. 392; Morrill v. Palmer (Vt.) 33 L. R. A. 411; Johnson's Heirs v. Raphael, 42 So. 470; State v. Wilson (N. C.) 28 S.E. 416; Offield v. Davis, 100 Va. 250; Schurler v. Ind. Comm. (Utah) 43 P.2d 696. Appellant's exceptions to the rejection of offered testimony are without merit, and the authorities cited do not support appellant's contentions. The judgment of the court below is supported by the record and it should be sustained.

BLUME, Justice. KIMBALL, Ch. J., concurs. RINER, J., concurs in the result.

OPINION

BLUME, Justice.

This case arose out of a proceeding instituted in Natrona County in the matter of the estate of Ora P. Roberts, deceased, who died in June, 1940, to determine the heirship of the deceased. The petitioners claimed to be the brothers and sisters of the deceased and his sole heirs at law. Barbara Kaiser Roberts, theretofore appointed administratrix of the estate, claimed to be his widow, and, as such, entitled to all the property of the estate, since its value was said to be less than twenty thousand dollars. She claimed to have been married to the deceased on November 1, 1934, in Natrona County, Wyoming, by a so-called common law marriage, that is to say, that she and the deceased, on that day, in the presence of one William Holliday, a lawyer, now deceased, and one McKenzie, declared to each other that they would then and there be husband and wife, and that pursuant thereto they, thereafter, cohabited with each other as such. The petitioners denied that any such marriage took place. The court found against Barbara Kaiser Roberts and in favor of the petitioners, on the ground that the so-called common law marriage had not been proved and on the further ground that no such marriage is recognized under the laws of this state. Judgment was entered accordingly, from which Barbara Kaiser Roberts, hereinafter called appellant, has appealed.

We shall not pause to set out the testimony tending to show a common law marriage between the deceased and appellant, nor the testimony in contradiction thereof, but proceed at once to determine whether such marriage, when entered into in this state, is recognized as valid under our laws. That has not heretofore been determined, a few cases in which common law marriages are mentioned, as Weidenhoft v. Primm, 16 Wyo. 340, 94 P. 453; In Re Kiesel, 35 Wyo. 300; 249 P. 81; Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, having been disposed of on other grounds. Connors v. Connors, 5 Wyo. 433, 40 P. 966, has at times been considered as holding such marriages valid, but in that case there was a ceremonial marriage, a license had been issued, but it had not been recorded. This was held not to make the marriage invalid. The court by way of dictum stated that the marriage would have been valid if no license had been issued. That dictum is supported by other authorities, though there are cases to the contrary. The point is not involved herein. In the case at bar, there was a total absence of compliance or attempted compliance with the regulations prescribed by our statute. For our present purpose it is sufficient to say that a so-called common law marriage is said to be entered into by words of present assent (per verba de praesenti). In other words, it is an informal contract by the parties declaring that they are then and there husband and wife. Some of the courts require subsequent co-habitation; others do not. The subject before us has given rise to many discussions, even acrimonious in character, and to many opposite opinions. Bishop strenuously maintains the validity of such marriage, not even shrinking from the fact that it might be called concubinage. Section 396, Bishop on Marriage, Divorce and Separation. Others, on the other hand, have deplored or wondered at the fact that the contract of marriage, the most sacred of all contracts, should be treated so lightly. 2 Pollock & Maitland, History of English Law, 369; Judge Redfield, in his edition of Story, Conflict of Laws, Section 112; Dunbarton v. Franklin, 19 N.H. 257; Note 17 Eng. Ruling Case Law 168. In the face of such different views it would be vain to hope that anything which we might say on the subject would convince anyone having the contrary opinion. But inasmuch as the ultimate authority to declare the law in this state is vested in us, we shall state our opinions and conclusions as dispassionately as possible, knowing that if we are wrong, the Legislature has power to correct...