Love v. Love (In re Love's Estate)

• Decision Date: 14 July 1914
• Docket Number: Case Number: 3607
• Court: Oklahoma Supreme Court
• Parties: In re LOVE'S ESTATE. LOVE v. LOVE.

1914 OK 332

142 P. 305

42 Okla. 478

In re LOVE'S ESTATE.

Case Number: 3607

Supreme Court of Oklahoma

Decided: July 14, 1914

Syllabus

¶0 1. MARRIAGE--"Common-Law Marriage." A common-law marriage exists where competent parties agree to be and become immediately man and wife, and pursuant thereto enter into and maintain thereafter the marriage relation.

2. SAME--Requisites-- Validity. Marriage, in the legal sense, is a civil contract, and it is not indispensable that a clergyman should be present to authorize and confirm the contract in order to give validity to the marriage.

3. SAME--Common-Law Marriage. Statutes regulating marriage are usually directory merely, and, when such statutes do not expressly prohibit or forbid other forms of marriages, a common-law marriage, consummated in accordance with the rules of the common law, is valid.

4. SAME-- Noncompliance with Statutes. The general rule is that statutes which direct that a license must be issued and procured, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present, and that a certificate of the marriage shall be signed, returned, and recorded, and that persons violating the conditions shall be guilty of a criminal offense, are directory merely, being addressed to persons in authority to secure publicity and a record of marriage, and will in no wise affect the validity of the marriage contract, unless they contain an express provision to that effect.

5. SAME--Common-Law Marriage--Validity. A common-law marriage is valid in this state.

Error from District Court, Blaine County; James R. Tolbert, Judge.

Petition in the county court by W. S. Love, praying that letters of administration issued to Emma Love in the matter of the estate of Albert W. Love, deceased, be vacated, and that he be appointed administrator. From an adjudication of the district court on appeal that Emma Love was not entitled to the letters of administration, she brings error. Reversed and remanded.

J. P. Wishard, for plaintiff in error

Seymour Foose, Robert A. Lowry, and R. C. Brown, for defendant in error

BREWER, C.

¶1 The record in this case presents a single question: Is a common-law marriage valid in this state?

¶2 Emma Love was granted letters of administration upon the estate of Albert W. Love, as his widow surviving him. W. S. Love, father of the deceased, filed a petition asking that the letters of administration issued to Emma Love be vacated, and that he be appointed as administrator of his son's estate. Upon a hearing in the county court, it was found that Emma Love was the common-law wife of the deceased; that the relation had been entered into by the parties in such a way as to constitute a valid marriage at the common law; and the court held, as a matter of law, that such a marriage was valid in this state. On appeal to the district court, the same findings of fact were made, but the court held that, under the present state of statutory law of this state, a common-law marriage is invalid; and that therefore Emma Love was not entitled to letters of administration on the estate of the deceased.

¶3 The Territorial Supreme Court in Reaves v. Reaves, 15 Okla. 240, 82 P. 490, 2 L.R.A. (N. S.) 353, sustained a common-law marriage under the law of the territory as it then existed, saying in the syllabus:

"Marriage, in the legal sense, is a civil contract, and it is not indispensable that a clergyman should be present to authorize and confirm the contract in order to give validity to the marriage. Statutes regulating marriage are usually directory merely, and, when such statutes do not expressly prohibit or forbid other forms of marriages, a common-law marriage, consummated in accordance with the rules of the common law, is valid."

¶4 But, at the time of this decision, the law of Nebraska, which had been put temporarily in force by the Organic Act, relating to the question of marriage, was in force, and that decision followed and relied upon the construction of the statute law declared by the Nebraska Supreme Court; but the court in that opinion took occasion to make an extensive study of the question, saying in the opinion:

"As before stated in this opinion, the general rule is that statutes which direct that a license must be issued and procured, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present, and that a certificate of the marriage shall be signed, returned, and recorded, and that persons violating the conditions shall be guilty of a criminal offense, are directory merely, being addressed to persons in authority to secure publicity and a record of marriages, and will in no wise affect the validity of the marriage contract unless they contain an express provision to that effect. They simply provide the evidence of the marriage."

¶5 But the statute of Oklahoma in force at the time of the marriage involved here differs from that of Nebraska, with which the Reaves case was concerned, and therefore it becomes necessary to again examine the question.

¶6 This difference in the statutory law led this court, in the case of Clark et al. v. Barney, 24 Okla. 455, 103 P. 598, to propound in the syllabus the question:

"Quaere. Is a marriage under the common law, without a celebration or solemnization in manner provided by our statute, permissible under the laws as now in force in this jurisdiction?"

¶7 And this question has not heretofore been squarely answered in this court.

¶8 Comp. Laws 1909, section 4222 (Rev. Laws 1910, sec. 3886), follows:

"No person shall enter into or contract the marriage relation, nor shall any person perform or solemnize the ceremony of any marriage in this state without a license being first issued by the judge or clerk of the county court, of some county in this state, authorizing the marriage between the persons named in such license."

¶9 Section 4219, Comp. Laws 1909 (Rev. Laws 1910, sec. 3883), defines marriage as:

"A personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law."

¶10 Other sections provide what the license shall contain, who may solemnize the rite, the execution and recordation of the certificate, etc.; and section 4231, Comp. Laws 1909 (Rev. Laws 1910, sec. 3895), makes it a felony for a white person to marry a person of African descent. There is no penalty, however, prescribed for entering into the marriage relation, upon the parties themselves, except in the case named. There are penalties, however, prescribed against persons solemnizing the rite in certain cases, and also against the officers acting contrary to the provisions of the act.

¶11 The provisions of the statutory law prevailing in this state at this time, while differing in phraseology and substance from those in force in Nebraska when the Reaves case was decided, are not materially different in effect upon the question involved here. The Nebraska statute (chapter 52, Neb. Comp. Laws 1889) defines marriage as a civil contract, depending upon the consent of competent parties, and provides that:

"Previous to the solemnization of any marriage in this state, a license for that purpose must be obtained from the probate judge in the county wherein the marriage is to take place."

¶12 It also, like our own, prescribes the form and contents of the license for a ceremonial marriage, and that it be solemnized by certain persons or officers only; and section 9 of said chapter specifically provides that, while no particular form of ceremony shall be required, yet:

"That the parties shall solemnly declare, in the presence of the magistrate or minister, and the attending witnesses, that they take each other as husband and wife; and in any case there shall be at least two witnesses, besides the minister or magistrate, present at the ceremony."

¶13 Other provisions provide for the issuance and recording of the certificate and for various penalties against officers failing to observe the statutory requirements. So we repeat that, so far as the statutes relating to the precise question involved here are concerned, all of the reasoning and the authorities quoted and relied upon in Reaves v. Reaves, supra, when studied closely, seem to be applicable at the present time; but it may be said that, to give our statute a reasonable construction, they prohibit persons from entering into the marriage relation except in the manner pointed out, and in a sense they do; but it is significant that they nowhere declare that marriages entered into otherwise than the statutory way are void; and this court in Hunt v. Hunt, 23 Okla. at page 495, 100 P. at page 543, 22 L.R.A. (N. S.) 1202, while discussing this question, said:

"The rule to be gathered from all of the foregoing cases of this character is that, notwithstanding the statute may penalize those who solemnize or those who enter into marriage contrary to statutory authority, the marriage itself is not void unless the statute itself so makes it, and hence in the case at bar, although the marriage was expressly forbidden and prohibited, it was voidable, and not void. While marriage is a personal relation arising out of a civil contract, it differs to such an extent from all other contracts in its consequences to the parties and to the public that the rule that prohibited and penalized contracts are void does not apply thereto."

¶14 And it may be said that it seems to be the policy of the law almost everywhere to apply far more liberal rules in aid of its validity than are applied to the ordinary contracts of everyday life; and this court emphasizes this idea in the language of Ames, C., in the case of Coachman v. Sims, 36 Okla. 536, 129 P. 845, wherein he says:

"Marriage should not be destroyed on presumption. The law is astute to preserve the sanctity of the marriage

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