Manire v. Burt, 8721.

• Decision Date: 26 October 1938
• Docket Number: No. 8721.,8721.
• Citation: 121 S.W.2d 630
• Parties: MANIRE v. BURT et al.
• Court: Texas Court of Appeals

121 S.W.2d 630

MANIRE v. BURT et al.

No. 8721.

Court of Civil Appeals of Texas. Austin.

October 26, 1938.

Rehearing Denied November 16, 1938.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Proceeding in the matter of the estate of L. W. Manire, deceased, wherein Mrs. Fidelia Manire was appointed administratrix. Monroe C. Burt and others brought the order of appointment to the district court for review by certiorari, and, from a judgment setting aside the order of appointment, Mrs. Fidelia Manire appeals.

Affirmed.

Murphy & Leslie, W. A. Johnson, and I. J. Curtsinger, all of San Angelo, for appellant.

Kerr & Gayer, of San Angelo, for appellees.

McCLENDON, Chief Justice.

This case involves the right of Mrs. Fidelia Manire (appellant) to letters of administration upon the estate of L. W. Manire, deceased. Mrs. Manire asserts that right on the ground that she is the surviving common law wife of decedent, that relation having been established after she and decedent were divorced on August 3, 1928. The probate court appointed her administratrix; and the temporary administrator appealed to the district court; which appeal was dismissed for lack of an appeal bond. This court affirmed the judgment of dismissal (Stephenson v. Manire, 93 S.W.2d 559), and the Supreme Court refused writ of error. The order of appointment was again brought to the district court for review by certiorari, at the instance of heirs at law of decedent, and the case tried upon its merits to the court without a jury. The trial court's judgment set aside the order of appointment upon the holding that Mrs. Manire was not the common law wife of decedent. The instant appeal is by Mrs. Manire from this judgment.

The controlling question here is whether the evidence, considered either independently or in conjunction with the trial court's fact findings, conclusively establishes that Mrs. Manire was the common law wife of decedent. Our jurisdiction to review the evidence factually is not invoked, and the question for decision is one of law only.

We have reached the conclusion that this question should be answered in the negative, and therefore the trial court's judgment should be affirmed.

We make the following general statement by way of introduction to the trial court's pertinent findings:

While the record does not show the exact or approximate age of Mrs. Manire or decedent, it is quite evident that at the time of the latter's death (October 29, 1933) they were both well advanced in years. They first became acquainted in San Angelo about 1915. At that time Mrs. Manire was the widow of a deceased Confederate soldier and drew a pension on that account. From then on she was in decedent's employ as housekeeper, lived under the same roof with him, and helped him in his business—that of a grocery merchant. They were married in 1921, and divorced August 3, 1928, in a suit filed by decedent and contested by Mrs. Manire. She appealed to this court, but the record was not filed and the judgment was affirmed on certificate January 9, 1929; in which proceeding Mrs. Manire through her attorneys waived issuance of notice and agreed "that this case may be affirmed on certificate at the earliest time convenient to the court." November 2, 1928, they executed an instrument by which Mrs. Manire was given a life estate in their residence property and $500 in cash, and decedent was given all other property held by decedent or in his name, Mrs. Manire releasing all her claim therein "by virtue of having been heretofore married to said L. W. Manire." Each acknowledged this instrument on different dates and before different notaries, each acknowledgment being on the form prescribed for a single person.

Mrs. Manire's claim that she thereafter became the common law wife is predicated upon the assertion that after she returned home from the divorce trial decedent came home and told her that he did not get a divorce and they would just "keep on as they had been"; that she believed and relied upon this statement; that they did continue openly and reputedly to live as man and wife until his death; that she would not have so lived with him had she known the divorce was granted; and that she did not learn that it was granted until shortly before his death.

The trial court's findings pertinent to the question before us were:

"8. That it was generally known in the community where the Manires lived in August, 1928, that L. W. Manire had obtained a divorce from Mrs. Fidelia Manire.

"9. That after L. W. Manire obtained a divorce from Mrs. Fidelia Manire in 1928, he and the said Fidelia Manire did live together most, if not all the time, until the death of L. W. Manire in the year 1933.

"10. That after L. W. Manire was divorced from Mrs. Fidelia Manire in the year 1928, he presented Mrs. Fidelia Manire to some people as his wife; to others he stated that she had been his wife but that he was now divorced from her.

"11. That after the divorce was granted to L. W. Manire from Mrs. Fidelia Manire in the year 1928, until his death in the year 1933, he provided for her, and she assisted him in the store during all of said time.

"12. Some months before the death of L. W. Manire he moved from the house he and Mrs. Fidelia Manire had occupied to a room adjoining his store building and remained there until his death.

"13. That after L. W. Manire was divorced from Mrs. Fidelia Manire in the year 1928, there was no agreement between them to again become husband and wife.

"14. That if L. W. Manire on the day the divorce case was heard in the 51st District Court of Tom Green County stated to Mrs. Fidelia Manire that he had or did not secure a divorce, she then knew or soon thereafter learned that such statement was not true."

The legal status of marriage arises of necessity out of agreement; that is, a contract. Where the legal formalities are observed the agreement, of course, is express. In a common law marriage, which imports absence of the legal formalities, the agreement need not be express, but may be implied or presumed from facts and circumstances.

The essential elements of a common law marriage are "an agreement to become husband and wife, a living together pursuant thereto as such, and a holding out of each other to the public as husband and wife." Martinez v. Martinez, Tex.Civ. App., 6 S.W.2d 408, 409. As stated in 28 Tex.Jur., p. 715: "The parties must, of course, have actually contracted for present marriage, and its seems clear, under the decisions, that this contract must have been consummated by a living together as husband and wife. Just what act or acts of cohabitation will suffice to consummate the marriage has never been stated—nor probably can it be."

Upon this latter subject see 28 Tex.Jur. p. 716, § 19.

The Texas cases upon the general subject of common law marriage are quite numerous; but a review of them would not be useful here. The above statement of the elements essential to the relation are generally accepted and suffice for our present purposes.

The trial court found there was no agreement and consequently no marriage. This must be construed to embrace an implied as well as express agreement. The testimony of Mrs. Manire furnished the only evidence of an express agreement, and clearly this was not conclusive of that issue. Appellant contends that the evidence conclusively established an implied agreement, in any event when considered with the court's findings, if not in fact when considered alone. De Beque v. Ligon, Tex.Com.App., 292 S.W. 157, is cited as controlling in this case. We can probably best present our views regarding the instant case by noting some essential points of difference between the two cases. In the De Beque Case the formal marriage was in 1883, and the spouses lived together continuously until the wife's death in 1923. In 1905 an uncontested divorce was granted the wife. The uncontradicted testimony of disinterested witnesses established that this was virtually a consent decree for the sole purpose of enabling the wife to deal with property in her own name. In 1917 they executed an instrument adopting a child, in which they recited that "We adopt said child under the laws of the State of Texas," and pledged themselves to be "kind and affectionate parents" and "to be to said child the same parents as if she were our child, by nature." The acknowledgment of the wife was in the usual form of that of a married woman, reciting specifically that she, "wife," etc., was "examined privily and apart from her husband." There was an uninterrupted living together as man and wife for forty years during which time there was a continuous holding out of themselves to the public as man and wife. The only evidence relied on to show lack of agreement was that the wife had from time to time executed conveyances as a single woman, had at one time brought a suit as such, and several people testified that they ...