*2 AKIN, and HUM- Before STOREY PHREYS, JJ.

HUMPHREYS, (a) administrative, any judicial, Justice. or oth- proceeding, marriage er of a man and This is an from an order evidence that: proved plea pro sustaining probate in bar in a ceeding. appellant, Claveria, Patricio probate proceed

filed a will contest in the (2) agreed and after McQuaid ings Faye of the estate of Otha *3 agreement together in they the lived this Claveria, wife. Claveria’s ceremonial rep- state as husband wife and there plea administratrix of filed a and the estate bar, asserting that was not they Claveria resented to were others that mar- surviving spouse of deceased because a [Emphasis ried. added.] prior marriage impedi common-law was an The case before us unusual in is somewhat ment to the of the ceremonial mar appellee attempted that establish riage. judge The trial found a common-law marriage the existence of a marriage, rendering appellant’s thus invalid Carolina, despite between Patricio and marriage ceremonial to the decedent. Con vehement assertions of both that mar- sequently, Claveria was not an interested riage Appellee existed them. re- between party 3(r) under Ann. § Tex.Prob.Code 1.91(b) (Ver- lies on Tex.Fam.Code Ann. § 1956), (Vernon so as to contest dece 1975), provides: non which community dent’s will and to a inter assert (b) proceeding In in which a Thus, judge any mar- probate est in the estate. his riage proved dismissed Claveria’s claims and contest. is to be under Subsection ( n )(2) hold, however, We section, agreement of this of prior insufficient1 a to establish parties to be inferred if marry may Accordingly, we marriage. re together proved is that lived as hus- probate judge. verse the order of the and wife represented band others [Emphasis undisputed married. add- It is that Claveria and the participated marriage decedent in a ceremo ed.] ny in 1974 and lived thereafter Apparently, probate judge re of husband and wife the death until jected testimony of both Claveria and question disputed decedent. The sole be agreement that there Carolina was no be appel- probate judge was whether fore permit and relied inference on the had lee established that Claveria entered holding that a ted com § mar into undissolved common-law existed, probate riage County in Bexar with a whose judge had to find and Caroli that Claveria Appellee

first name was Carolina. admits public as na held themselves out to the man marriage of the ceremonial Claveria wife and that the decedent valid. presumed Tex. 1975); (Vernon Ann. Tex and wife. if these elements Only Fam.Code 2.01 man are § Employers Association v. El Insurance of an proved der, (1955). Tex. be to be married drawn. Thus, in order to invalidate ceremonial legal sufficiency fore us is the and factual prov of marriage, appellee the burden these two support of the evidence ele of pre-existing the elements common- ments of a common-law element, To establish the first of The elements a common-law themselves Claveria and Carolina held set out in Tex.Fam.Code are Ann. 1.91(a)(2) (Vernon 1975), provides: appellee man weight points “great preponderance” 1. The contention is “no evidence” to that there finding sufficiency test the or that a fact is “established error factual evidence. law,” sustained, insufficiency legal point is sufficien- When a factual as a matter cy involves Sustaining legal appeals remand the court of civil can for of the evidence. suffi- O’Connor, Appealing Jury ciency point usually requires trial. See reversal another error (1974). Findings, 12 evidence” and Hous.L.Rev. 65 rendition. “Insufficient record is that Carolina was deed and deed of clear warranty introduced trust, day. doc- the statement was made present both dated the same These when state- government she with the from United States thus is not connected uments Thus, only proof in the record there is agency ment manner. acknowledged anyone ever that Carolina evidence to establish Carolina As was her husband. further to the Claveria themselves out jointly Claveria held public, appellee out to the public to and wife. be man made in 1972 Claveria’s statement produced ele proof on the second Appellee’s woman named he was married to a ment, to Claveria lived that Carolina and This lone statement “Caroline.” of Clave- gether as consisted man deposition in an unrelated lawsuit four on testimony testimony deposition ria’s and the to Dallas. years after Claveria moved Car- both had “lived has never lived in Dallas. state- olina deposition two months.” The *4 strangers was made and adverse ment to The fact does not on cohabitation. bear attorneys any per- than to litigant’s rather that Carolina lived Claveria and County any ger- in Bexar or at time son living togeth show for two does not months dispute. Consequently, to this it can- mane This element er as man and wife. second “holding taken as a out” of Carolina not be marriage requires of a more alleged his wife at the time of his cohabi- as roof. than relations under a common sexual with her. tation require set cases have out the Several anyone There is no a com ments cohabitation establish community in the where Carolina and Gary Gary, 490 In v. lived which would a find Claveria 1973, 929, (Tex.Civ.App. Tyler 932 S.W.2d — holding public out to the to be man n.r.e.), three writ ref’d the court set out the designation and wife. The of Carolina and marriage and elements of a common-law Claveria in deed and deed trust is neces added that “each of the elements ele legally insufficient to establish this sary, and that the particularly it is essential in Ex parte ment. As the court stated would parties mutually agree that Threet, 482, 361, 160 Tex. 333 364 S.W.2d wife then and be husband and thenceforth (1960): following be on and that the cohabitation Benson, in v. It was held Drummond Tex. agreement mutual the faith of this 154, Civ.App.1939, writ 133 refus S.W.2d Refining promise.” in Humble & And Oil ed, person that isolated to a as references 374, (Tex.Civ. v. 38 376 Jeffrey, Co. S.W.2d her being his or husband or consti 1931), 521 App. aff’d 55 S.W.2d — Austin law tuted no evidence of a common mar judgmt. adopted), co (Tex.Com.App.1932, riage. Similarly, the introduction of de living together, as habitation was defined her two fendant as husband to close claiming in the friends, telling two or three others things ordi doing husband and was that she married to defendant consti In De narily by husband and wife. done plaintiff that tuted Christian, 495, 496 v. Shazo as living together Threet were husband 1945, ref’d writ (Tex.Civ.App. — Amarillo holding wife and themselves out to n.r.e.), was held insufficient the evidence public as wife. Under the man and marriage even establish decisions, there can be secret she though the woman established such. The se common hus lived in house her former the same crecy is and irreconcilable inconsistent was There band after their divorce. holding requirement of a with separate had a bedroom evidence that she living together are out her spent evenings of her at much husband and wife. [Footnote omitted.] Thus, that court held sister’s house. represen of cohabitation and deposition does statement the evidence Nor Claveria’s “wholly justify requirement. The tations was insufficient to establish the 438 agreement at implication living such deed of trust the time into them.” Addi- they “purchased

was entered between shows that Threet, tionally, parte in Ex 160 Tex. as hus- living home (1960), supreme 364 does and wife” band but court held that there was no evidence of contain the word The record does “home.” no common-law mar- cohabitation thus long they how not disclose riage though undisputed was even or house after it deeded to them when relations, had sexual and there Any property. sold the Claveria agreement was direct evidence of an purchase of this based married. intended be married each necessity as an ele- of cohabitation any specific specula- mere other at time is marriage was ment of common-law estab- payment The down two tion. Reib, Grigsby Tex. lished 153 hundred dollars. minds could Reasonable (1913). Grigsby, plaintiff In S.W. prop- equally draw conclusion that agreed had introduced evidence that she bought resale and that erty strictly Grigsby to be husband and proceeds go they intended to divide the wife, and he had introduced her as his exactly respective ways, which is what at her resi- they often sexual relations they did. adverse jury dence. from an verdict, plaintiff attacked an instruction no evi Appellee produced was the plaintiff that in order find that express to be mar dence of an *5 jury Grigsby, common-law wife of the must ried, relying on the inference an but Grigsby she lived as husband find that agreement allowed in section This pursuant agreement wife an to be and present agreement must be a inferred the married. The sole before su- unqualified, agreement, unconditional preme propriety court was of this in- long as as both of to be husband wife finding prop- struction. In the instruction Keifer, v. 105 Tex. Schwingle them live. er, the court “The cohabitation stated: 609, 153 (1913); Salvini, 1132 v. S.W. Salvini as husband and professedly must be 963, (Tex.Civ.App. 2 966 Paso S.W.2d — El so that conduct public, by their towards 1928, dism’d). repre writ Evidence of other, as they may each be known husband the char by couple sentations strong 153 1130. The and wife.” S.W. at must couple’s cohabitation lead acter of policy requiring reason for cohabitation to couple agreed to to the inference that the was enunci- common-law remainder of husband and wife for the that court follows: by ated lives. The here does not lead parties One of the to such contract Furthermore, or in to such an inference. marry family, dy- might and raise a couple intended to to infer der ing disclosing the former mar- without the trial together permanently, remain riage, widow” could “common-law were cohabit to infer judge had forward, surviving come claim to be together they lived ing the fact that displace and thus who urged months. The inference for two hardships borne the had they lived appellee that because mother, bastards, brand the children the inference that supports for two months position with her and take the as survivor perma they intended to remain regu- for the rights in the A rule estate. bases one nently is unauthorized because marriage, rights lation sacred Schlumberger another. See make rights such of families Oil & Gas Servicing Corp. v. Nortex Well recognized wrongs possible, not be should (Tex.1969). at 858 Corp., 435 S.W.2d 854 governments. in civilized at 1130. 153 S.W. Jordan, 421 .2d cites v. S.W Appellee Foix 1967, writ ref’d (Tex.Civ.App. Paso 481 argues the fact Clave- Appellee — El Avalos, 567 .2d e.) Rodriguez v. S.W n. r. purchased named ria

439 them, other is known to be writ) while the 1978, (Tex.Civ.App. Paso 85 — El third alive, cohabits with a marries or finding court’s of valid support the trial ” person.’ In Foix there express agreement evidence of favor of presumption in “The e., participated had i. notwithstanding marriage, of the second wedding. Evidence a Mexican church marriage, ‘isone of testimony of provided by cohabitation if, indeed, strong not the strongest, with but one their residence in a house law’, out est, may even known to Rodriguez one bed. In bedroom and but contrary.” to the weigh positive evidence thirty- cohabitation was the evidence of Mullinax, added.) Mullinax v. (Emphasis conception together and the years residence (Tex.Civ.App. Waco, 447 428 — Thus, regard children. we do not of three 1969, writ); Employers Ins. applicable in the these authorities 27, Elder, 155 Tex. 282 S.W.2d Assn. v. present case. Indemnity (1955); Employers Pacific (Tex.Civ. Aquirre, 431 S.W.2d Co. we hold that where an Accordingly, n.r.e.). writ ref’d App. Waco, to be married is inference of an — Tex.Fam.Code.Ann. relied on under supreme court language The forceful (Vernon 1975), 1.91(b) testimony that El Association v. Employers in Texas Ins. two months and (1955), der, 155 Tex. showing only mortgage one loan Legislature when adopted by our 63rd they both acknowl transaction wherein subject. Policy on this it declared the State and wife is edged themselves to be husband provides: Family Code Section 2.01 support an sufficient evidence to health and promote order to agreed to live to inference that necessary rec- provide the welfare and to gether as husband and wife. ords, detailed and prescribes this code followed in establish- specific rules to be Furthermore, the conduct of However, relationship. left Carolina and Claveria after Claveria those stability for provide in order to County and came to Dallas over Bexar *6 marriage relationship in entering into the 1.91(b). by any comes inference authorized § legitimacy and good provide faith and to early as Claveria came to Dallas as the relation- security for the children of worked married the decedent in pre- ship, policy of this state is years. employer for the same for about ten marriage against uphold each serve and He and the decedent lived until strong invalidity unless reasons claims of her death in 1978. far as this record So or voidable. holding it void exist for discloses, parted com Claveria and Carolina Therefore, marriage entered into every years áppellant the dece pany before it is is considered valid unless this state ceremonially married. In a case dent were chapter or by void this expressly made situation, involving strikingly similar fact by voidable expressly it is unless Rosetta, Rosetta v. provided is annulled as chapter this 1975, writ) Justice (Tex.Civ.App. Tyler— two or more mar- by chapter. this When McKay stated: spouses are riages person of a to different Wideman, 203 In Middlebrook v. marriage pre- recent is alleged, the most (Tex.Civ.App. Texarkana, — against each mar- be valid as sumed to where it is 1947, writ) it was held that as- one who riage precedes it until marriage existed a common law claimed marriage prior validity of serts the marrying anoth act of the woman validity. its proves any inference that effectively rebutted er only requir- as not interpret We this statute on a common law might have been drawn cere- to invalidate a R.C.L., ing competent evidence p. 434: quoted 18 marriage, and “ limiting any marriage but also marriage be over monial of will ‘An inference latter favoring the to those separate presumptions and one parties come where Thus, undisputed marriage. alleged prior when an It is that Claveria Caroli- inference, pre- marriage is based on purchased house and executed a deed na subsequent sumption validity mortgagee as husband and of trust to marriage effectively rebuts they wife. This at the time com- occurred alleged prior marriage. of according living together, to Clave- menced Therefore, marriage we hold that Claveria’s majority holds that this evidence ria. The alleged to deceased rebuts the prove legally is insufficient marriage to Carolina. to others as man and held themselves out for rehear- Accordingly, appellee’s motion holding seems to have two bas- wife. This overruled, ing opinion is our former with- First, representations were es: that these drawn, probate judge the order of the is of the audience to insufficient because judgment reversed and rendered made, second, party under sec- Claveria is an interested representations was insufficient. number 3(r) tion Probate Code and of testi- majority points to the absence may therefore contest the will. Pro- mony by community members as to a hold- is to reinstate Claveria’s bate Court directed Claveria or Carolina proceed contest and to trial. I 1.91as § were man and wife. do read requiring testimony by any particular AKIN, Justice, dissenting. support a group persons necessary is This concerns a construction In- finding of a common-law 1.91(a)(2) Tex.Fam.Code Ann. §§ deed, relationship was short and where the 1975) 1.91(b)(Vernon sufficiency passed, testimony from years several have necessary a common- may be difficult community members I under those sections. would may the audience Admittedly obtain. sufficient hold that the evidence important under some circumstances. For support findings that Claveria and Caro- instance, motel, if checked into a lina “lived in this state as husband purporting husband and I would they represented to others and wife representa- be inclined to hold that such a they were the evi- married.” Since finding would not a com- tion finding two ele- supports dence on these inference that the ments, to be married engaged in an illicit properly be inferred under Con- upon such a just probable would be based sequently, probate I would affirm the representation, as the inference judge’s finding order relationship. engaged permanent in a barring from con- appellant where, here, the representation But Accordingly, I testing the decedent’s will. entity and filed of government made to a must dissent. *7 record, logical I see no basis for public presented by The two issues this legally insuffi- holding representation the of a sufficiency are the of the evidence the audience to which it upon cient based out, holding i. e. that Claveria and Carolina warranty deed of made. The deed and was mar- represented to others that record, subject of trust were matters ried, of sufficiency the of the evidence public at inspection by members of the to cohabitation, lived i. e. that Hence, a contin- they constituted time. majori- agree I with the as man and wife. members of the uing representation to all ele- holding the of these ty’s support an infer- community readily sup- marriage must ments of a common-law I relationship. permanence ence of couple intended the inference that the port “holding out” ele- agree cannot permanent rather relationship their merely because there proved ment was not period. With indefinite or for a fixed than neighbor or communi- is no from mind, I review the principle this held and Carolina ty that Claveria members “holding ele- out” and “cohabitation” wife. husband and out as themselves ments.

441 couple a I basis deed of trust on residence for agree can the second Neither a holding specific holding a of out as hus- majority’s “no evidence” is to necessary representations part single number of is is because it of band wife mar support finding of transaction.

riage. majority holds that because proven to whether it was respect With part of warranty deed and deed trust together as lived that Claveria Carolina transaction, rep they are an isolated of one my agree- I reiterate husband and insufficient resentation thus general rule set forth in ment with the “holding authority for prove out.” As majority the evidence opinion that quotes an ex proposition, majority this cohabitation must couple’s character of the Threet, cerpt parte Ex 160 Tex. couple in- the inference (1960) quotes 364 S.W.2d permanent. tended their Benson, (Tex. Drummond However, joint pur- that the agree I cannot ref’d). Civ.App. writ Antonio —San couple resides chase of house which distinguishable are on their Both cases relationship was “no that their is evidence” facts. majority permanent. The intended to be court that isolated In Drummond the held upon the “Any inference based holds that: person being as his her references to a or they intend- property this purchase of no evidence of husband or constituted at any each other ed to be married to a common-law The court in that speculation. . specific time is mere case concerned with references was isolated equally draw the Reasonable minds could years, period over a all made outside the bought conclusion that presence spouse purport- other strictly resale and that intended to clearly ed That situation is dis- go respective proceeds divide tinguishable joint pub- from a execution of I exactly what did.” ways, which is wife. lic documents husband and majority has submit that the respectfully parte In Ex Threet there was evidence of holding under an is- reached an erroneous only defendant as one introduction presented in the case at bar. Their sue not remaining plaintiff’s repre- husband. joint holding purchase proper- by plaintiff sentations that defendant intent to be married. ty is no evidence of pres- her husband were made outside his (Ver- 1.91(b) Ann. § Under Tex.Fam.Code However, Threet, parte ence. in Ex 1975), required appellant was not non couple never shared a common residence. intent be married. present evidence girl plaintiff year old who a fifteen appellee’s evidence was in- By holding that de- occasionally sexual relations with prove an intent to be sufficient to parent’s a period fendant at her home over pro- ignored the inference majority couple spent an of four months. The never vided for that section. night together. Clearly entire there was no 1.91(b) appellee was re- Under § together as evidence that the lived holding as husband quired plaintiff in case man and wife. The discussed, and that previously to establish representations relied lived man and Carolina Claveria “holding both the out” and the “cohabita- disputed wife. is not It parte tion” elements. The of Ex months; together for at least several representations were Threet was that these *8 together is whether lived a to establish both elements of insufficient majori- agree man wife. I Ex marriage. parte common-law Thus prove a lived ty that in order to authority proposition Threet is not must be man and wife there holding multiple out as instances a couple’s the character of evidence of required before the husband and wife is supporting the inference that cohabitation prove legally evidence is sufficient a rather than relationship permanent agree I common-law cannot a indefinite. The evidence accepting warranty executing temporary a deed and or majority’s holding a woman that Claveria and Under the instant case shows house, jointly purchased claiming a common-law wife could Carolina to be signed deed of trust as husband chil- forty years, that each live with a man bear his living They commenced to- through good and wife. also times by dren and stand him This evidence gether at this same time. her to and bad. Then when the man left supports the inference that Clave- logically ceremonially marry younger ria and Carolina intended their thereafter, the woman who had shortly died temporary. rather than permanent would, in all her entire life to him devoted by husband and purchase proving be barred from that she probability, imposes community property cases of this was his wife. In almost all Thus, it is not upon law the transaction. agree- of an type, direct evidence purchase equally logical to infer that such testimony by ment to be married would purposes, as the is made for investment widow as to her purported majority suggests since investors would conversations with decedent. Since Rather sign the deed as husband and wife. would be barred the dead joint purchase of the the evidence of the statute, only recourse would be the man her house, makes the in- as husband and wife to be married inference of an not, probable more than that Clave- ference majority would permitted by § permanent intended a rela- ria and Carolina presumption hold legal- it is tionship. Thus I would hold that 2.01 marriage under § later ceremonial ly sufficient evidence that Claveria 1.91(b) in- applicability of the § forecloses wife.” lived “as man and Carolina agree enacting I cannot ference. majority opinion, As I understand 2.01, such a re- legislature mandated § support judgment they alternatively sult. inference of an by holding that where an I suffi- Because find the is relied agreement to be married findings Claveria and support cient to prior marriage, proof of a subse being out as mar- Carolina held themselves ex quent marriage conclusively rebuts the I as man ried and marriage Tex. under istence of finding a com- judgment affirm the would 1975). (Vernon I Ann. 2.01 Fam.Code § between Claveria and agree 2.01 mandates such cannot that § his will barring. Claveria from Carolina support holding, major its result. against appellee. contest Rosetta, 525 ity cites Rosetta v. 1975, writ), (Tex.Civ.App. Tyler— position. supportive majority’s

is not on the fac

The Rosetta was based evidence. In Ro insufficiency

tual

setta, there appellant’s assertion finding of a support no evidence to specifically BRAZIER, Appellant, Belvon Neither does the overruled. Id. at 260. majority’s language of 2.01 § BRAZIER, Appellee. Thelma a hier holding. majority imposed has ceremonial mar

archy places on 2.01 that 8385. No. higher level than a common-law riage on Texas, Appeals of Civil Court I no basis under Texas find Beaumont. hierarchy, majority and the for such a authority proposition. for that Re cited no 28, 1980. Feb. to the my personal views as gardless marriages over of ceremonial preferability relationships, any changes such

less formal legislature. left to the

in the law should be