230 P. 608 | Colo. | 1924
THE plaintiff in error contested the will of one Danicks or Danikas, whose widow by a so-called common-law marriage she claimed to be. Defeated in the Denver county court she appealed to the district court and was successful. The judgment of the district court was reversed by this court on the ground of insufficient evidence to prove the marriage. Cordas v. Ryan,
By stipulation the evidence in the first trial was used in the second with the addition of the depositions of Alice V. Cronin, a sister of the contestant, and Mary Ryan, her mother. These additions make contestant's case worse rather than better because they show that she and Danicks agreed to go to French Lick and there have a ceremony performed. True, the witness Cronin varied this tale considerably, but we must assume that the court believed it as above stated. The decisions are that there can be no *193
common-law marriage where the agreement is that the marriage contract shall be by ceremony, and reason supports them. Cartwright v. McGown,
A letter from the plaintiff in error to her mother, Mary Ryan, purporting to have been written on the train going to French Lick, announces the marriage, but it is not competent, on her behalf, to prove the marriage (Drawdy v.Hesters,
In the Morgulski Case,
The Counsel for plaintiff in error contends that a contract per verba de futuro cum copula amounts to marriage and that the evidence of such a marriage in the present case is complete and undisputed. The contention is unsound, because: (1) The copula is in dispute and the finding is for proponent. There was evidence that Danicks was too ill. (2) A contract per verba de futuro cum copula does not compel a presumption of marriage when the agreement is that the marriage shall be by a future ceremony. Cheney v. Arnold,
3. Such a contract never amounts, ipso facto, to marriage. We are not willing to assent to the proposition that verba de futuro cum copula amounts to marriage or ever can do so. The most that can be claimed from such facts is that when the promise of future marriage is definitely proved the proof of subsequent copula will be presumed to be with words of marriage in praesenti, if there is no evidence to the contrary. Cartwright v. McGown, supra;Cheney v. Arnold, supra; Duncan v. Duncan, supra. This is no more than saying that it is evidence tending to show a contract in present words.
Contestant offered to show by the witness Cronin that the reputation of Danicks and contestant in Denver during their absence and until his death was that they were man and wife, but the court rejected the offer because the reputation offered was not in the community in which they lived since they were not in Denver together while married. This rejection was right. Whether reputation of marriage need not be of the neighborhood, as Mr. Wigmore thinks, Wig. Ev. § 1603, we need not decide, but when the marriage is disproved by the claimant's own evidence, reputation cannot avail. Cartwright v. McGown, supra. Illicit cohabitation will not support reputation as proof of marriage; reputation alone is not enough, and the agreement that the marriage should be by a future ceremony refutes the possibility of a marriage agreement in praesenti, which is in all cases essential to a so-called common-law marriage.
As we held in Peters v. Peters,
The judgment was right and is affirmed.
MR. CHIEF JUSTICE TELLER not participating.
MR. JUSTICE ALLEN dissents.