280 Pa. 50 | Pa. | 1924
Opinion by
James McDevitt, of Philadelphia, died in September, 1922, intestate and without issue; his sister, Mary Tranor, became administratrix of his estate. At the audit of her account as such, Mary Frances McDevitt, the appellant, claimed to be the widow of the deceased and entitled to share in his estate. The auditing judge rejected her claim, on a finding that she and Mr. McDevitt were never married; from the approval of this finding by the orphans’ court, Mrs. McDevitt brought this appeal.
We find no ground for reversal. Some twenty-five years ago appellant and the deceased commenced an illicit cohabitation, which continued, with some interruptions, for many years. Mrs. McDevitt testified that she commenced the cohabitation under a promise of marriage, which Mr. McDevitt renewed from time to time, during succeeding years, but that they never were married. There was no ceremonial marriage nor proof of a contractual one, written or oral. The only evidence is that he promised to marry her, which is not marriage, although its breach might sustain an action for damages. The question here is not whether these parties were engaged but whether they were married, and of the latter there was no proof. There was abundant evidence of cohabitation and some of reputation, which combined might tend to create a presumption of marriage, but are
Moreover, the cohabitation having been meretricious at its inception, its illicit character is presumed to continue. “If cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation, but this presumption is not conclusive. In other words, the presumption that a cohabitation meretricious in its origin continues to be of that character may be rebutted and proved to have become matrimonial, and a lawful common law marriage established. The change may be established by circumstantial evidence, but the circumstances must be such as to exclude the presumption that the original relation continued, and to prove satisfactorily that it was changed to matrimonial union by mutual consent”: 18 R. C. L. 420; see also Hunt’s App., supra; Com. v. Gamble, 36 Pa. Superior Ct. 146. Here the proof does not satisfactorily rebut that presumption. True, the deceased permitted her to assume his name and they took title to and later conveyed a piece of land in their joint names as husband and wife. The latter circumstance is strongly urged as proof of a changed relation; but the so taking and so conveying did not constitute a marriage; while the-contention that it indicated there had been one is answered by appellant’s positive testimony to the contrary. As we
The decree is affirmed and appeal dismissed at the costs of appellant.