Slavens' Estate, In re, 12381

Decision Date30 April 1973
Docket NumberNo. 12381,12381
Citation509 P.2d 293,162 Mont. 123
PartiesIn the Matter of the ESTATE of Violet Smith SLAVENS, Deceased.
CourtMontana Supreme Court

Sandall, Moses & Cavan, Billings, D. Frank Kampfe, Billings, for appellant.

Evalyn B. Carson, Billings, for respondent.


This is an appeal from an order entered in the district court of the thirteenth judicial district, Yellowstone County, denying petitioner's motion for a new trial.

The dispute in this case concerns a determination of the proper heir or heirs of the deceased Violet Smith Slavens. Decedent, hereinafter referred to as Mrs. Slavens, died intestate in September 1971. Rose Smith Meyers, Mrs. Slavens' sister, was appointed administratrix. Lon Marsh, petitioner here, then petitioned the court to determine heirship basing his claim on an alleged common law marriage between himself and Mrs. Slavens. The trial court found against the petitioner and we affirm.

Mrs. Slavens and Marsh were married in 1960 in Roundup, Montana. After seven years of marriage, the parties were divorced in June 1967. As part of the property settlement Mrs. Slavens received a ranch in Laurel, Montana and Marsh received an apartment building in Billings, Montana. Both parties being avid race horse enthusiasts, they continued to conduct certain business transactions jointly. Marsh managed the ranch and the race horses, while Mrs. Slavens collected rents on Marsh's property in Billings for him. Occasionally Marsh and Mrs. Slavens went on horse racing trips together; the parties were, at different times, seen at motels together after their divorce and petitioner alleges they had resumed marital relations.

The major portion of the controversy concerns whether the parties were living together in Mrs. Slavens' apartment in Billings. This is significant because, if true, it would add credence to Marsh's contention that a common law marriage existed at a time subsequent to their divorce. Marsh contended that shortly after their divorce they resumed a marriage relationship not unlike that which existed prior to their divorce. He further contended he and Mrs. Slavens agreed to live as husband and wife and they consummated the marriage. Petitioner introduced considerable testimony and evidence tending to show that he lived at Mrs. Slavens' apartment, at least some of the time. Marsh received mail at the apartment, often cooked dinner there, watched television there, and had his own key to the apartment.

On the other hand, there was testimony by the apartment house manager that Marsh did not live there and Mrs. Slavens, in fact, lived alone. Further testimony of Mrs. Slavens' sisters indicated that, to her family, she was known as a single woman after her divorce from Marsh and she continued to regard herself as single until her death. In addition, respondents, the natural heirs of Mrs. Slavens, introduced numerous exhibits showing that Mrs. Slavens held herself out as a single woman after her divorce. These exhibits included income tax returns, retirement claims, doctor and hospital bills, trade bills, and correspondence.

While the fact that Marsh and Mrs. Slavens might have lived together is important, it is only one of several factors to be considered in determining whether a common law marriage existed. The Court is aware the presumption of a moral and legal relationship is a strong one. We noted in Welch v. All Persons, 78 Mont. 370, 384, 254 P. 179, 182:

'The presumption in favor of matrimony is one of the strongest known to the law.'

The Court further noted in Welch that marriage does not arise by the mere fact of cohabitation alone.

Section 48-101, R.C.M.1947, states what constitutes a marriage:

'Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute...

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6 cases
  • Snetsinger v. Montana University System
    • United States
    • Montana Supreme Court
    • December 30, 2004
    ...[for a common-law marriage] does not need to be expressed in any particular form." Hunsaker, ¶ 34 (citing In re Estate of Slavens (1973), 162 Mont. 123, 126, 509 P.2d 293, 295). Thus, the Court errs in asserting that our law "clearly defines" what kind of evidence is necessary to establish ......
  • Jim's Water Service v. Eayrs
    • United States
    • Wyoming Supreme Court
    • March 6, 1979
    ...there is a strong presumption in favor of the legality of a common-law marriage. Welch v. All Persons, supra; In re Estate of Slavens, 162 Mont. 123, 509 P.2d 293 (1973). The element of repute is a key term, and several cases where the Supreme Court reversed the finding turned on this issue......
  • Campbell v. Bnsf Ry. Co.
    • United States
    • U.S. District Court — District of North Dakota
    • December 2, 2010
    ...marital relationship “does not need to be expressed in any particular form.” Hunsaker, 1998 MT 279, ¶ 34 (citing In re Estate of Slavens, 162 Mont. 123, 509 P.2d 293, 295 (1973)). It can be implied from the individuals' conduct. Id. (citing Miller v. Townsend Lumber Co., 152 Mont. 210, 448 ......
  • Estate of Hunsaker, Matter of, 97-569
    • United States
    • Montana Supreme Court
    • November 17, 1998
    ...and agreement. The mutual consent of the parties does not need to be expressed in any particular form. In re Estate of Slavens (1973), 162 Mont. 123, 126, 509 P.2d 293, 295 (quoting Welch v. All Persons (1929), 85 Mont. 114, 133, 278 P. 110, 115). Mutual consent can be implied from the cond......
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