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ESTATE SPURGEON D. REES APPEAL DOROTHEA L. REES (08/17/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 17, 1984.

IN RE ESTATE OF SPURGEON D. REES APPEAL OF DOROTHEA L. REES

No. 00040 HBG 83, Appeal from the Order entered January 12, 1983 in the Court of Common Pleas of Dauphin County, Orphans Division, at No. 897 of 1979.

COUNSEL

Kiefer N. Gerstley, Philadelphia, for appellant.

David A. Wion, Harrisburg, for appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 331 Pa. Super. Page 227]

Appellant challenges the lower court's order striking her election to take against decedent's will. Specifically, she argues that the lower court erred in concluding that appellant and decedent were not united in common law marriage. We find no merit in appellant's challenge and, accordingly, affirm.

Following decedent's death on September 24, 1978, appellant filed an election to take against decedent's will, to which appellees, the executors of decedent's estate, objected. After depositions of out-of-state witnesses were taken, and a hearing was held to determine appellant's status vis-a-vis the decedent, the lower court ordered the election stricken. This appeal followed.

Appellant contends that words in praesenti are not necessarily required for the establishment of common law marriage and that the evidence was sufficient to establish such a marriage. Essentially, appellant's argument is

[ 331 Pa. Super. Page 228]

    that evidence of her and decedent's cohabitation and reputation in the community sufficed to prove a common law marriage. Upon review, we disagree. Words in praesenti are usually required to establish a common law marriage relationship. See McGrath's Estate, 319 Pa. 309, 179 A. 599 (1935). However,

     because it is often difficult to prove a common law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and co-exist -- constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general.

Manfredi Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960). Cohabitation and reputation, however, "do not create the marriage but rather are circumstances giving rise to a rebuttable presumption of one." Wagner Estate, 398 Pa. 531, 533, 159 A.2d 495, 497 (1960); Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700; Nikitka's Estate, 346 Pa. 63, 29 A.2d 521 (1943). Moreover, "the rule which permits a finding of marriage duly entered into based upon reputation and cohabitation alone is one of necessity to be applied only in cases where other proof is not available." Nikitka's Estate, supra, 346 Pa. at 65, 29 A.2d at 522.*fn1

In the instant case, the record reveals the following facts and proof: Appellant and the decedent were not married when they parented a son, Morgan, in 1953. On May 13, 1954, they were married in El Paso, Texas and within a day were divorced in Mexico. Shortly thereafter, appellant moved with Morgan to Florida while decedent remained in Harrisburg, the location of his business. The two remained domiciled in their respective cities for the following 24

[ 331 Pa. Super. Page 229]

    years. However, appellant contends that throughout the 24-year period preceding decedent's death, the two enjoyed a reputation in her Florida community as a married couple and that decedent's occasional visits to Florida clearly demonstrated the requisite cohabitation. In support of her claim, appellant presented the deposition testimony of several Florida neighbors and friends of her son. Generally, the witnesses were all questioned about their knowledge of the frequency of the decedent's visits to Florida and their impression of the nature of the relationship at issue.

With regard to the couple's alleged cohabitation, Raul Valdovinos, a childhood friend of Morgan's, testified that he met the decedent in the early 1970's and that he saw him at appellant's house on major holidays. Mr. Valdovinos also testified that the decedent was introduced to him as Morgan's father. (N.T. December 18, 1980 at 93). Earl Valentovic, another of Morgan's friends, testified that he too saw the decedent on holidays and "probably three, four, maybe several various times in the middle of the year too . . .", and that the decedent always remained in Florida for three days or more. (N.T. December 18, 1980 at 12). On cross-examination however, Mr. Valentovic conceded that the decedent "was not [in Florida] for most months out of the year." (N.T. December 18, 1980 at 25). Based on this evidence, representative of all of the deponents' testimony, appellant has clearly failed to meet her burden to prove that she and the decedent enjoyed "constant, as distinguished from an irregular or inconstant, cohabitation." Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700. Cf. Nikitka's Estate, supra (ample evidence of seven years cohabitation at parents' house); Wagner Estate, supra (resumption of 20-year marriage after one year's interruption).

Further, the evidence fails to support appellant's contention that she and the decedent were commonly known and recognized as husband and wife.

The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not

[ 331 Pa. Super. Page 230]

    sufficient evidence to establish marriage. Proof by reputation for such purposes must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others.

Nikitka's Estate, supra, 346 Pa. at 66, 29 A.2d at 523, quoting Hilton's Estate, 263 Pa. 16, 19, 106 A. 69, 70 (1919). See Wagner Estate, supra (resumption of a 20-year marriage). Cf. Dennis Estate, 394 Pa. 296, 147 A.2d 419 (1959) (no proof of reputation -- "wife" always referred to by former husband's name); Nikitka's Estate, supra (testimony of reputation by two witnesses, "one a boarder of the appellant's and the other a close friend of appellant's for many years" inadequate proof). In the instant case, appellant presented the testimony of only a few neighbors and friends of her son. Several of the deponents stated that they understood appellant and decedent were married, that the couple traveled together, and that appellant never dated other men. Mr. Valdovinos testified that he had even seen the decedent emerge from appellant's bedroom in the morning hours. (N.T. December 18, 1980 at 94). Additionally, the witnesses testified, over the objection of appellees' counsel, that the feeling in the community was that the couple was indeed married. This evidence, however, falls far short of that required to demonstrate reputation. Firstly, it is undisputed that the decedent long resided in Harrisburg, Pennsylvania. No evidence was introduced by appellant that, in Harrisburg the couple enjoyed the reputation of being married.*fn2 Nor is there any evidence that appellant ever visited Harrisburg to see her alleged "common law husband". From these gaps in appellant's proof, and from our review of the record, we infer that in decedent's community he was regarded as a single man. Secondly, the

[ 331 Pa. Super. Page 231]

    only evidence offered by appellant was the testimony of a few neighbors and friends. This testimony does not stretch beyond appellant's neighborhood to establish a general reputation. For instance, Mr. Valdovinos' testimony that he had seen the decedent at appellant's home during the morning hours and evidence that the couple traveled together on several occasions, do not establish a "reputation of marriage, which is not partial or divided, but is broad and general." Manfredi Estate, supra 399 Pa. at 291, 159 A.2d at 700. This evidence suggests that appellant and decedent maintained a close, even intimate relationship over more than two decades, but fails to satisfy the proof required to establish a valid common law marriage.*fn3

Accordingly, we affirm the lower court's order striking appellant's election against decedent's will.

Affirmed.


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