Reilly v. JacobsReilly v. Jacobs
- Reporters:
- ,
- Before:
- De Williams
The sole question presented by this appeal is whether the record supports the finding of the judge of the probate court that James Palmer Jacobs and Pauline L. Jаcobs had consummated a valid informal, or common-law marriage, which continued until the death of James Palmer Jacobs. We hold that the record supports such а finding and, therefore, affirm the judgment.
On December 11, 1974, James Palmer Jacobs died intestate. Pauline L. Jacobs, claiming to be the surviving wife of the deceased was duly appоinted administratrix of the estate of James Palmer Jacobs, Deceased. Thereafter, Cloverdell Reilly, sister of the deceased, filed her petition to declаre heirship in which she asserted that the only heirs at law of James Palmer Jacobs, deceased, and, therefore, the only persons en
Texas has long recognized the validity of a common-law or informal marriage. Our courts, and the legislature, have said thаt the existence of the relationship or status is valid if three elements exist. These elements are: (1) An agreement, express or implied, presently to be husband and wife;
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(2) living tоgether in cohabitation as man and wife; and (3) the parties holding each other out to the public as husband and wife.
Humphreys v. Humphreys,
364 S.W.2d 177 (Tex.1963);
Ex parte Threet,
160 Tex. 482, 333 S.W.2d 361, 364 (1960);
Shelton v. Belknap,
155 Tex. 37, 282 S.W.2d 682 (1955);
Grigsby v. Reib,
105 Tex. 597, 153 S.W. 1124 (1913);
Appellant, in her brief, has conceded that the last two elements of a common-law marriage were established by competent evidence at the trial. This narrows the question to be decided by this court to whether thе record supports the probate court’s finding that there was an agreement between the decedent and appellee to be presently married.
The difficulty in producing direct evidence relating to such an agreement between a man and a woman to be presently married is quite apparent since the lips of one of the two parties are sealed by death and the lips of the other party who survives are closed by the mandatory prohibition of Tex.Rev.Civ.Stat.Ann. art. 3716 (Vernon 1926), cоmmonly known as the “Dead Man Statute.” For this reason, the courts have long held that such an agreement need not
The legislature adopted this rule when it enacted
Appellant concedes that the evidence, which we need not discuss in detail, demonstrates conclusively that Pauline L. Jaсobs and James Palmer Jacobs lived together as husband and wife and held themselves out to the world to be husband and wife. Therefore, under these authorities, and the statute quоted, the trial judge was justified in inferring the agreement of the parties to be married.
Appellant, however, argues that she presented sufficient evidence to rebut this presumption or inference and, therefore, the rule cannot be applied. She points to the testimony offered by her that Mrs. Jacobs did not change her former namе (Pauline Armes) on a driver’s license until after the death of James Palmer Jacobs; that she did not change the name on her social security card; and that Palmer had opened bank accounts and had a bank safety deposit box in his name without the joinder of Pauline Jacobs.
In support of her contention, appellant in orаl argument relies on Clack v. Williams, 189 S.W.2d 503 (Tex.Civ.App.-San Antonio 1945, writ ref’d w.o.m.) wherein the decedent had divorced her husband but according to his testimony they continued to live together in the same mаnner. Although he testified that he did not know about the divorce, he contended that he was the surviving husband by common-law marriage. The court held that no common-law marriage existed because the existence of a marriage agreement cannot be implied from circumstantial evidence when there is contrary direct testimony by the аlleged spouse showing no agreement.
This case is distinguishable because there is no direct testimony by Pauline Jacobs rebutting the presumption of marriage. See 1 Wigmore on Evidence § 25 at 399 (3d ed. 1940). The almost identical situation was present in McIlveen v. McIlveen, 332 S.W.2d 113 (Tex.Civ.App.-Houston 1960, no writ), in which evidence was offered to contest the existence of a common-lаw marriage. In that case there was evidence that Lupe Postell Mcllveen, claiming to be the common-law wife of Alfred Mcllveen, had not changed her social security number; that she continued to use the name Postell and had not used the name Mcllveen on other occasions. The court held that such evidence by Mrs. Mcllveеn goes merely to her credibility and does not constitute an admission on her part that she did not hold herself out as the wife of the deceased. As the court pointed out there were conflicts in the testimony and perhaps some inconsistencies but such conflicts and inconsistencies have to do with the credibility of Mrs. Mell-veen and the wеight to be given her testimony. We think the same rationale applies here to the marriage agreement and a careful review of the entire record convinсes us that there was sufficient evidence, though circumstantial, to support the findings and conclusions of the probate judge in support of the common-law marriage.
The judgment of the trial court is affirmed.
Notes
. The Supreme Court of Texas in Grigsby v. Reib, 105 Tex. 597, 608, 153 S.W. 1124, 1130 (1913), speaking through Chief Justice Brown, after an exhaustive historical and legal review of the common-law marriage relationship, said:
Marriage is not a contract, but a stаtus created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agrеement with cohabitation, but, however contracted, having the same elements, and producing the status of husband and wife. The sole difference which can legally exist is in thе method of expressing consent; and the only particular in which a marriage as at common law can differ from the statutory method is the absence of license аnd the ceremony. The cohabitation must be professedly as husband and wife, and public, so that, by their conduct towards each other, they may be known as husband and wife. Such mаrriages may be equally the consummation of a mutual affection, which will produce a home and family that will contribute to good society, to free a. d just government, аnd to the support of Christianity — to the common weal. It would be sacrilegious to apply the designation, ‘a civil contract’ to such a marriage. It is that and more; a status ordained by God, the foundation and support of good government, and absolutely necessary to the purity and preservation of good society.