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ESTATE HAROLD L. GARGES (10/07/77)

decided: October 7, 1977.

IN RE ESTATE OF HAROLD L. GARGES, DECEASED. APPEAL OF MILDRED K. GARGES (AT NO. 247). APPEAL OF ELIZABETH WISMER (AT NO. 211)


COUNSEL

Jerome B. Nulty, Souderton, J. Brooke Aker, Norristown, for appellant at No. 211 and appellee at No. 247.

John J. Rufe, Alton G. Grube, R. A. Lechowicz, Sellersville, for appellant at No. 247 and appellee at No. 211.

Eagen, O'Brien, Roberts, Pomeroy, and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 474 Pa. Page 239]

OPINION OF THE COURT

This is an appeal from a decree of the Orphans' Court Division of Bucks County.*fn1 The only question before us is whether the Auditing Judge was justified in deciding appellee Mildred K. Moyer, also known as Mildred Garges, was the common law wife of decedent Harold L. Garges, and thus is entitled to share in his intestate estate. We conclude the orphans' court decision is supported by the record and therefore affirm.*fn2

I.

Decedent Harold L. Garges was the husband of Elizabeth Moyer Garges. They had a daughter, appellant Elizabeth

[ 474 Pa. Page 240]

Wismer, in 1938. Beginning in 1944, decedent cohabited with appellee Mildred K. Moyer. The court found that this cohabitation lasted until Mr. Garges' death in 1968.*fn3

On May 8, 1962, Mr. Garges and Elizabeth Moyer Garges were divorced. The court found that shortly after the divorce Mr. Garges showed his copy of the divorce decree to Mildred K. Moyer. He told her, "Now we're legally married," and she replied, "It's about time. That's just what we were waiting for."*fn4 Afterwards, Ms. Moyer began to wear a wedding ring decedent had given her long before his divorce. In 1963, Ms. Moyer, using the name Mildred K. Garges, and Mr. Garges took out life insurance policies naming each other as spouse-beneficiaries. The Auditing Judge also found that decedent and Ms. Moyer had the reputation in their community as being married at common law both before and after decedent's divorce in 1962.

II.

In Pennsylvania, marriage is a civil contract made between parties with the capacity so to contract.*fn5 E. g., Gower Estate, 445 Pa. 554, 284 A.2d 742 (1972) (agreement of marriage by itself proved common law marriage); Rosenberger Estate, 362 Pa. 153, 157, 65 A.2d 377, ...


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