Walton v. Walton

• Decision Date: 16 March 1921
• Docket Number: (No. 179-3208.)
• Citation: 228 S.W. 921
• Parties: WALTON v. WALTON et al.
• Court: Texas Supreme Court

228 S.W. 921

WALTON v. WALTON et al.

(No. 179-3208.)

Commission of Appeals of Texas, Section A.

March 16, 1921.

Error to Court of Civil Appeals of First Supreme Judicial District.

Application by Marie Estelle Walton for appointment as temporary administratrix of the estate of N. A. Walton, deceased, contested by Nora Walton and another. Judgment for applicant was reversed, and judgment rendered for contestants, by the Court of Civil Appeals (203 S. W. 133), and the applicant brings error. Judgment of the Court of Civil Appeals reversed, and that of trial court affirmed.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, and Chas. L. Black, of Austin, for plaintiff in error.

Terry, Cavin & Mills, of Galveston, and F. J. Wren and Jno. G. Gregg, both of Fort Worth, for defendants in error.

TAYLOR, P. J.

This case involves a contest between Marie Estelle Walton and Nora Walton, growing out of the application of Marie Walton to be appointed administratrix of the estate of N. A. Walton. Each claims that she was the lawful wife of the deceased at the time of his death. The former bases her claim upon a ceremonial marriage solemnized according to the forms of statutory law. The latter bases her claim on an alleged prior common-law marriage.

Walton died as a result of injuries while in the employ of the Gulf, Colorado & Santa Fé Railway Company. Marie Walton filed suit against the company for damages, and made application to be appointed administratrix of Walton's estate. The railway company joined Nora Walton in contesting the application. Trial in the probate court resulted in the appointment of Marie Walton as administratrix. The contestants appealed to the district court, where the result was the same as in the probate court. The Court of Civil Appeals reversed and remanded the case. 191 S. W. 188.

The case upon the second trial in the district court was submitted to the jury on two special issues, to wit, whether there was a common-law marriage between Nora Walton and N. A. Walton, and whether, in the event of an affirmative answer to the first issue, Nora Walton and N. A. Walton were divorced. The jury found in response to the first issue that there had been no common-law marriage, and upon this finding judgment was rendered appointing Marie Walton administratrix of the estate of the deceased. A negative finding having been made to the first issue submitted, no finding was made upon the second.

The Court of Civil Appeals was of opinion that the undisputed evidence showed there was a common-law marriage between Nort Walton and Nora Walton, and under the view that an instructed verdict should have been given in favor of defendants in error, as requested by them, reversed the judgment of the trial court and rendered judgment in their favor. 203 S. W. 133.

The question for determination is whether the court was warranted in submitting the first special issue. In other words, was the question of whether there was a common-law marriage between N. A. and Marie Walton a jury question?

The marriage relation under the decisions of this state is based upon either actual agreement or ceremonial celebration. A marriage at common law, in the absence of conflicting testimony, may be presumed from evidence showing that the parties lived together professedly as husband and wife, and further their general recognition as such by the community. Yates v. Houston, 3 Tex. 433; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Id. (Tex. Civ. App.) 95 S. W. 1126; Hutchins v. Kimmell, 31 Mich. 130, 18 Am. Rep. 164.

The testimony is uncontradicted that Walton and Marie Walton lived and cohabited together from 1897 to 1903; that Walton caused notice to be put in the home paper where he and Nora resided together that they were married; that the parties continued to live together, holding themselves out as man and wife, for a number of years; that they were recognized as such by those with whom they sustained business relations and by the community generally, by even Walton's mother and father, in whose home they spent much time, and where they lived for some time as members of the family. Three children were...