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decided: October 7, 1977.



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]


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


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.


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, 379 (1949). Proving the existence of a marriage contract, except where

[ 474 Pa. Page 241]

    it is entered into ceremonially, is difficult, because it is likely to arise in an informal setting, where records are not kept. Therefore, the courts of this Commonwealth have developed certain rules and presumptions to aid them in determining whether a marriage contract has been entered. Appellant asserts that when these rules and presumptions are properly applied, the evidence is insufficient to prove a common law marriage between decedent and appellee Mildred K. Moyer.

Cohabitation of a man and a woman, both of whom are capable of contracting marriage, and a reputation as husband and wife in their community together raise a presumption that the parties have contracted marriage. E. g., Thorndell v. Morrison, 25 Pa. 326 (1855); Commonwealth v. Stump, 53 Pa. 132, 135 (1866); Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1949). Where, however, the relationship between the parties began while at least one party was married to a third person, the courts will presume that the parties continued to live together unmarried even after the impediment to their marriage had been removed. Clear and convincing evidence of a change of status is required to rebut this presumption. E. g., Pierce v. Pierce, supra.

In this instance, the Auditing Judge recognized that the cohabitation of Harold L. Garges and Mildred K. Moyer began while Mr. Garges was still married, and required "unequivocal" proof of a change of status. In particular, the court found that the conversation quoted above, in which Mr. Garges and Ms. Moyer agreed they were now legally married had in fact taken place.

A marriage contract does not require any specific form of words. In particular, words of taking or explicit performative utterances,*fn6 such as "I take you to be my wife" or "I hereby marry you" are unnecessary. All that is essential is proof of an agreement to enter into the legal

[ 474 Pa. Page 242]

    relationship of marriage at the present time.*fn7 For example, in Rosenberger Estate, 362 Pa. at 155, 65 A.2d at 379, a marriage contract was found where the man gave the woman a ring and said, "Now you have the ring and you are my wife," whereupon she replied, "That is fine. I love it." These words are in form mere statements by the man that a condition of marriage exists and by the woman of pleasure with that fact, but in their context the words indicated an agreement to marry.

Here, the trier of fact had adequate reason to find the exchange between decedent and appellee to be an agreement to marry. As in Rosenberger, the utterances take the form of statements but evidence agreement to be married. The court could properly infer from the statements and the surrounding circumstances an agreement to alter the former relationship of decedent and appellee -- that is, to become married now that decedent's former marriage had been dissolved.

The court also relied on corroborating evidence that decedent and appellee agreed to be married. They continued cohabiting after the quoted exchange, and their reputation as husband and wife was unchanged.*fn8 They took out the life insurance policies, each designating the other as

[ 474 Pa. Page 243]

    spouse, and Ms. Moyer began to wear the ring decedent had given her.

The evidence was sufficient to prove a marriage contract. Conflicting evidence was presented but the resolution of these conflicts was for the trier of fact. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). We find no basis for disturbing his determination.

Decree affirmed. Each party pay own costs.

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