Wristen v. Wristen

• Decision Date: 29 June 1938
• Docket Number: No. 1816.,1816.
• Citation: 119 S.W.2d 1104
• Parties: WRISTEN v. WRISTEN et al.
• Court: Texas Court of Appeals

Page 1104

119 S.W.2d 1104

WRISTEN v. WRISTEN et al.

No. 1816.

Court of Civil Appeals of Texas. Eastland.

June 29, 1938.

Rehearing Denied September 23, 1938.

Appeal from District Court, Dawson County; Chas. L. Klapproth, Judge.

In the matter of the estate of John Wristen, deceased. From a judgment on a directed verdict for Bert Wristen, individually and as temporary administrator of the estate, and others after trial on appeal to the district court from an order of the county court, denying an application by Mrs. Kate Wristen, for herself and as next friend of her minor son, for appointment as permanent administratrix, she appeals.

Affirmed.

Crenshaw & Dupree, of Lubbock, and Scarborough & Ely, of Abilene, for appellant.

Carl Rountree, J. E. Garland, Louis B. Reed, and V. O. Key, all of Lamesa, for appellee.

LESLIE, Chief Justice.

John Wristen, a resident of Dawson County, died February 15, 1937, seized and possessed of considerable real estate and personal property, much of which was located in that county. Bert Wristen, a brother, applied for and was appointed temporary administrator of the estate. He alleged there was no necessity for a permanent administration, no minor heirs, etc., and that he was not disqualified to be appointed temporary administrator of the estate.

Soon thereafter, Mrs. Kate Wristen, acting for herself and as next friend for her son John, made application to be appointed permanent administratrix of said estate, alleging that at his death John Wristen was her lawful husband, and the father of her son John. She set out the names of the brothers, sisters, nieces and nephews of the deceased, and alleged they were all the surviving relatives and kin interested in the estate; and upon the ground that she was Wristen's wife, claimed a preference right to be appointed permanent administratrix and asked that the appointment of Bert Wristen be revoked. She alleged she was such wife by virtue of a common-law marriage, and that her son, John Charles, was the legitimate child of Wristen.

Bert Wristen individually, and as temporary administrator, joined by the brothers and sisters, etc., answered, contesting her right to be so appointed, and denying that she was ever the lawful wife of John Wristen and otherwise resisted her claim to be appointed permanent administratrix of the estate, etc.

Her application and prayer for appointment as administratrix came on to be heard in the County Court where the prayer was refused. She appealed to the District Court where a trial was had on pleadings in the nature of those indicated. At the conclusion of the trial the judge peremptorily instructed the jury to return a verdict against the plaintiff and in favor of the defendants. A judgment was entered accordingly and she prosecutes this appeal.

The appeal presents but one question to be decided and that is as to whether the testimony introduced by the appellant Mrs. Kate Wristen was sufficient to raise a fact issue to go to the jury as to whether or not at the time of the death of John Wristen she was his wife by virtue of a common-law marriage.

If the evidence, taken in the light most favorable to the plaintiff, conclusively warranted an instructed verdict in defendants' favor, the judgment should be affirmed. 41 Tex.Jur. p. 949, sec. 177.

The correct test to be applied to the testimony in determining whether or not the parties have consummated a common-law marriage is fully discussed and applied in Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1, Ann.Cas. 1915C, 1011, in an able opinion by Justice Brown, wherein the following charge of the trial court was approved [page 1125]: "The court instructs you that a common-law marriage is legal and valid under the law of Texas; and neither the issuance of license or ministerial or official marriage ceremony is necessary to constitute a lawful and binding common-law marriage. All that is necessary to constitute such a marriage is that if the parties mutually agree and consent together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife, the marriage would be valid under our law. If you find and believe from the evidence that the plaintiff and the deceased, G. M. D. Grigsby, on or about the 10th day of April, 1905, mutually consented and agreed together with each other to become husband and wife, with the intention at that time of living and cohabiting with each other as husband and wife, and that in pursuance of such agreement, if any, they did professedly live and cohabit together as husband and wife, you will find for the plaintiff that she was the common-law wife of the deceased, G. M. D. Grigsby. If, however, on the other hand, you fail to find that plaintiff and deceased, G. M. D. Grigsby, mutually consented and agreed together with each other to become husband and wife on or about April 10, 1905, or if you find that plaintiff and deceased, Grigsby, did not professedly live and cohabit with each other as husband and wife in pursuance of such agreement, if any, you will find for the defendant, Eliza J. Reib."

At the time of handing down that opinion, the case of Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130, 51 L.R.A.,N.S., 182, was decided and in referring to and citing Grigsby v. Reib, supra, the court said concerning that opinion [page 1131]: "The charge of the court gave a correct rule to govern the jury in deciding the issue of marriage."

In the interest of brevity, this opinion proceeds upon the theory that the appellant's testimony at least raised an issue of fact in respect to the alleged agreement between her and John Wristen to take each other as husband and wife during the remainder of their lives. This is taking her testimony in that respect in the light most favorable to her, and except in a collateral way, or where the evidence on this phase of the case may have a bearing on the other issue in the case, the inherent weakness of the testimony pertaining to such agreement will not be referred to or discussed. It may, for the purposes of this opinion, be accepted as true.

The existence of such agreement alone is not sufficient to establish the status or marriage relation, as pointed out in the above authorities and those to follow. In addition, the proof must show that such agreement was followed by cohabitation and living together professedly as man and wife. Grigsby v. Reib, supra; Berger v. Kirby, supra; Schwingle v. Keifer et al., 105 Tex. 609, 153 S.W. 1132; Bull v. Bull, 29 Tex.Civ.App. 364, 68 S.W. 727; Consolidated Underwriters v. Kelly et al., Tex. Com.App., 15 S.W.2d 229; De Beque v. Ligon, Tex.Civ.App., 286 S.W. 749; Id., Tex.Com.App., 292 S.W. 157; Edelstein v. Brown, Tex.Civ.App., 95 S.W. 1126; Id., 100 Tex. 403, 100 S.W. 129, 123 Am.St. Rep. 816; Humble Oil & Refining Co. v. Jeffrey, Tex.Civ.App., 38 S.W.2d 374; Id., Tex.Com.App., 55 S.W.2d 521; Ingersol v. McWillie, 9 Tex.Civ.App. 543, 30 S.W. 56; McChesney v. Johnson, Tex.Civ.App., 79 S.W.2d 658; King v. King's Unknown Heirs, Tex.Civ.App., 16 S.W.2d 160, reversed on other grounds, Tex.Com.App., 34 S.W.2d 804; Salvina v. Salvina, Tex. Civ.App., 2 S.W.2d 963; Texas Employers' Ins. Ass'n v. Soto, Tex.Civ.App., 294 S.W. 639; Defferari v. Terry, 128 Tex. 521, 99 S.W.2d 290; 28 Tex.Jur. p. 714, sec. 17, et seq.

As reflected by the testimony the general nature of the connection and association of these parties for more than twenty years will first be discussed. Specific portions of the appellant's testimony will then be referred to as conclusively showing that during such time they did not cohabit and live together professedly as husband and wife, which, as pointed out, is also essential to create the marriage status under the common-law. In McChesney et al. v. Johnson, Tex.Civ.App., 79 S.W.2d 658, it is said [page 659]: "The agreement is fundamental and cohabitation is an element, but the holding out to the public as being man and wife is the acid test." Obviously this is but stating in different language what Judge Brown said in Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1, Ann.Cas.1915C, 1011, when he wrote [page 1130] "The cohabitation must be professed as husband and wife, and public, so that, by their conduct towards each other, they may be known as husband and wife."

According to Webster's New International Dictionary the word "profess" means "to make open declaration of, to make public declaration or avowal." The word "professed" means "openly declared, avowed, acknowledged or claimed." The meaning of the word "professedly" used by our Supreme Court, is "avowedly" and its accepted meaning and usage, as reflected by the context of the opinion, states precisely what the appellant and John Wristen did not say or do concerning their alleged marital relation.

With the view of applying the above test, an examination of the testimony will now be made. When 14 years of age the appellant, then Kate Gillespie, moved in 1914 with her father and the family to Dawson County where he rented a farm from John Wristen's father. Here Kate soon became acquainted with John. It appears that he later became the owner of the farm, and in 1918 moved into a shack thereon about 100 yards from the Gillespie home.

In 1923 he rebuilt or added to the residence and moved into a room of the same. The Gillespies continued to occupy the residence. At that time John was about 38 years of age. According to appellant's testimony, he began making love to her about July, 1915, when she was 15 years of age. In time they discussed getting married and during her 16th year they began having illicit relations. The testimony is that he suggested that they would get married "later" and she says she yielded under such belief. That such illicit acts were thereafter repeated at "every chance." On August 11, 1923, concluding that John was not serious in his courtship, she married E. H. Miller and moved with him to...