Wagner's Estate, In re

• Decision Date: 22 March 1960
• Citation: 82 A.L.R.2d 681,159 A.2d 495,398 Pa. 531
• Parties: , 82 A.L.R.2d 681 In re ESTATE of Charles I. WAGNER, Deceased. Appeal of Madeline H. WAGNER.
• Court: Pennsylvania Supreme Court

Page 495

159 A.2d 495

398 Pa. 531, 82 A.L.R.2d 681

In re ESTATE of Charles I. WAGNER, Deceased.

Appeal of Madeline H. WAGNER.

Supreme Court of Pennsylvania.

March 22, 1960.

Ryan & Russell, Samuel B. Russell, Harold J. Ryan, Reading, for appellant.

D. Frederick Muth, Reading, guardian ad Litem for Christine Gregro.

Grant E. Wesner, Reading, for appellees, Peoples Trust Co. of Wyomissing Executor, Ruth I. Kays, Gladys Conrad and Clarence Wagner.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

BOK, Justice.

The basic question is whether the decedent and the claimant, once his wife, entered into a valid common law remarriage after their divorce.

Decedent died testate, leaving nothing to the claimant, who asserted marriage and filed her election to take against his will. The court below held that there had been no valid remarriage, vacated the election, and struck it from the record. The claimant has appealed.

Common law marriage has been well described by President Judge Keller in Baker v. Mitchell, 143 Pa.Super. 50, 17 A.2d 738, as a fruitful source of perjury and fraud. It is to be tolerated and not encouraged, and cohabitation and reputation do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one.

These doctrines are familiar enough. We are, however, not dealing with a first marriage but with a remarriage following divorce after twenty years of wedlock. In such case we think that the law's role of more toleration of the common law relationship should be reversed and the status of remarriage favored, even if acquired with common law informality. If the law allows a spouse, in the generous amount of nine reasons, to establish by divorce that the marriage was a mistake, it should be at least equally eager to let both spouses discover that their divorce was also a mistake. We regard it better to encourage remarriage than to leave such parties under judicial edict that they were living sinfully together for ten years. If children had been born of this relationship, the wisdom of regularizing it if possible would be all the more apparent.

The court below did not disbelieve the claimant's witnesses but found the following basic facts: that the parties declared that their divorce was a mistake, that they were going to reunite, and that they were going on a second honeymoon; that they went to a motel in Eagles Mere and registered as husband and wife; and that after returning to Reading, where they had spent their married life they cohabited there for ten years, from June, 1945, to October, 1955. The court also found that during this ten years they were known as Mr. and Mrs. Wagner by their friends.

In view of these findings it is needless unduly to labor the evidence supporting them. Appellee does not attack them but hastens to support the court's conclusion that there was insufficient evidence of reputation. While the court said that claimant did not meet her burden of proving reputation and cohabitation, the consideration of this statement must be limited to reputation because of the finding in so many words that the parties cohabited in Reading for ten years.

Thus there is a decree on the books that decedent had a meretricious relationship with his former wife, a result technically possible but unusual enough to warrant avoiding it, in the interest of the repose of morals, if reasonably feasible to do so.

Remarriage is sufficiently rare in human affairs to justify regarding it as sui generis. In the instant case there is evidence that the parties married in 1924, that they first separated in 1944, that the libel in divorce was filed on June 28, 1944, that final decree was signed on November 6, 1944, and that on June 27, 1945, they went on their honeymoon to Eagles Mere. Five witnesses testified that the general reputation of the parties thereafter was that of man and wife. Examples: witness Helen Angstadt--'Q. Would you state what their general reputation was? A. Man and wife.' Witness Shrank--'Q. And what was that reputation? A. * * * man and wife, Mr. and Mrs. Wagner, the same as the rest of the neighborhood. Everybody referred to them as Mr. and Mrs. Wagner. Q. And the general reputation was man and wife? A. That's right.' The court below did not reject this testimony but seems to have overlooked it when it said: '* * * Was it a consensus of opinion in the community? Did the Wagners hold themselves out as husband and wife? * * * The answers are not forthcoming and no one can obtain them from the record.'

To the contrary, the answers are clear upon the record. In addition to the above quotations, Helen Angstadt testified that she heard her father introduce her mother to third parties, to 'customers, tenants, friends', as his wife or Mrs. Wagner. Besides the witnesses to general reputation above mentioned, there are two who testified that the decedent introduced the claimant to them a his wife or as Mrs. Wagner.

This is ample evidence of holding out and of reputation. The court, however, felt that the claimant's reputation as Mrs. Wagner and her right to the name stemmed from the first marriage and not from the second, that some witnesses did not even know of the divorce, that the honeymoon at Eagles Mere was as consistent with sin as with virtue, and that the neighbors were not very critical of their status. All of these sound like good reasons for upholding the remarriage instead of denying it.

Generally, words in the present tense are required to prove common law marriage: In re Rosenberger's Estate, 1949, 362, Pa. 153, 65 A.2d 377; In re Blecher's Estate, 1955, 381 Pa. 138, 112 A.2d 129. But where there is no such proof available, the law permits a finding of marriage based on reputation and cohabitation when established by satisfactory proof: In re Nikitka's Estate, 1943, 346 Pa. 63, 29 A.2d 521; In re Horton's Estate, 1947, 357 Pa. 30, 52 A.2d 895.

In the instant case the decedent is dead and the claimant's lips are sealed by the Dead Man's Act, May 23, 1887, P.L. 158 § 5(e), 28 P.S. § 322. To deny the status of marriage, let alone a remarriage, because words in the present tense cannot be proved, would be a clear injustice. It may even be said that certain acts may speak as loudly as words. In Re Rosenberger's Estate, supra (362 Pa. 153, 65 A.2d 377, 378), decedent bought a wedding ring and put it on his pregnant mistress's finger, saying: 'Pretty soon we will have the baby. Now you have the ring, and you are my wife.' She answered: 'That is fine. I love it.' We upheld the marriage. In Caddy v. Johnstown Firemen's Relief Association, 1938, 129 Pa.Super. 493, 196 A. 590, 592, the man said: 'We can live together as common law people', and the woman said that she was satisfied. He then gave her a wedding ring, and President Judge Keller quoted approvingly what the court below said of that: 'We can conceive many varieties of declaration which might satisfy the law as to the validity of the contract * * * The wedding ring was placed upon her finger * * * and we must attach some significance to that act. A wedding ring signifies that the one who presents and the one who receives are wedded.' In the case at bar we have no evidence of how the ring was presented and received or of what words accompanied the act, but there is evidence that it was the claimant's original wedding ring which she had laid aside at the time of divorce and resumed upon her return with the decedent from their declared honeymoon.

Appellee points to two deeds, dated in 1951 and 1957, in which the decedent appears as 'single man'. The fact that such a document reads in both names has been cited in several of the lower court cases, infra, as persuasive evidence of the intent to marry, but we can think of reasons suggesting the decedent's convenience in being named as single, especially in the deed of 1957, which was executed after his final separation from the claimant. Rebutting this, the evidence shows that the decedent's 1950 Federal income tax return listed the claimant as his wife and claimed an exemption for her.

In any event, no single piece of evidence is enough to establish or to destroy the conclusion of remarriage. As Mr. Justice Patterson well said in Re Horton's Estate, supra, (357 Pa. 30, 52 A.2d 895, 897): 'Proof of habit of the...