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WAGNER ESTATE. (03/22/60)

March 22, 1960

WAGNER ESTATE.


Appeals, Nos. 46 and 47, Jan. T., 1960, from decree of Orphans' Court of Berks County, File No. 48198, in re estate of Charles I. Wagner, deceased. Decree reversed. Proceedings on election to take against will. Before MUTH, P.J. Opinion filed striking election to take against will from record, claimant's exceptions dismissed and decree entered. Claimant appealed.

COUNSEL

Samuel B. Russell, with him Harold J. Ryan, and Ryan & Russell, for appellant.

Grant E. Wesner, with him D. Frederick Muth, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 398 Pa. Page 533]

OPINION BY MR. JUSTICE BOK

The basic question is whether the decedent and the claimant, once his wife, entered into a valid common-law remarriage after their divorce.

Decedent died testate, leaving nothing to the claimant, who asserted marriage and filed her election to take against his will. The court below held that there had been no valid remarriage, vacated the election, and struck it from the record. The claimant has appealed.

Common law marriage has been well described by President Judge KELLER in Baker v. Mitchell, 143 Pa. Superior Ct. 50, 17 A.2d 738,, as a fruitful source of perjury and fraud. It is to be tolerated and not encouraged, and cohabitation and reputation do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one.

These doctrines are familiar enough. We are, however, not dealing with a first marriage but with a remarriage following divorce after twenty years of wedlock. In such case we think that the law's role of mere toleration of the common law relationship should be reversed and the status of remarriage favored, even if acquired with common law informality. If the law allows a spouse, in the generous amount of nine reasons, to establish by divorce that the marriage was a mistake,

[ 398 Pa. Page 534]

    it should be at least equally eager to let both spouses discover that their divorce was also a mistake. We regard it better to encourage remarriage than to leave such parties under judicial edict that they were living sinfully together for ten years. If children had been born of this relationship, the wisdom of regularizing it if possible would be all the more apparent.

The court below did not disbelieve the claimant's witnesses but found the following basic facts: that the parties declared that their divorce was a mistake, that they were going to reunite, and that they were going on a second honeymoon; that they went to a motel in Eagles Mere and registered as husband and wife; and that after returning to Reading, where they had spent their married life, they cohabited there for ten years, from June, 1945, to ...


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