No. 

### 14605 THE 

### sUPF?ERE COW 

### OFTHE STATE 

### OFMXI?ANA

-- IN

### THE IWlTER OF THE ESTATE

RALPH 

### I. 

## scxmEAm, Deceased.

Appeal fm: District

### Court of 

### theThirteenthJudicial District, HonorableNatAllen, Judgepresiding. Counselof Record: 

### ForAppellant: RobertL. 

### Stephens, 

### Jr., Billings, mntana For Respondent: 

### Berger, Anderson, Sinclair & 

### Murphy, Billings, l~ntana Efmer Dolve, 

### Billings, 

### mntana

Suhnitted onbriefs: Nbrch 29, 1979 Decided: 

## MAY30 

## 1979 Filed:

. 

# MAY89

# 198

-.-Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

This appeal is from 

### a summary judgment of the District Court, Thirteenth Judicial District, County of Yellowstone, the Honorable NatAllen presiding. The summary judgment was dated September 19, 1978, and was granted on a motion on behalf of Edith Ellis, the personal representative herein, in

### its entirety and dismissing the petitions of Elsie Lester, Margaret Joan Lester, and Roberta Louise Lester with prejudice. The court alsodenied a motion for summary judgment of Elsie Lester, Margaret Joan Lester, and Roberta Louise Lester. In this opinion, Ralph I. Schanbacher, the deceased herein, 

### willbe referred to as "Ralph" and ElsieJane Lester, one of the appellants, 

### willbe referred to as "Elsie". Ralph I. Schanbacher, alsoknown as Ralph I. Lester, married Norvall Fern Johnson on November 

### 8, 1916, in Newton, Kansas. There 

### were four children born of this marriage including Edith Ellis, thepersonal representative herein. This marriage continued until Fern's death in Billings, Montana, inSeptember 1973. Throughout his lifeRalph was a cattlebuyer. He also owned and operated several ranch properties and 

### a feedlot at Lewistown, Montana. In thisbusiness he was required to spend considerable 

### timeon the road and away from his family. This was sonot only during hismarriage toFern, but later, inhis living arrangement with Elsie. Elsiewas the widow of Norman Lester, and was introduced toRalph by Norman Lester, who introduced Ralph ashis cousin Ralph Lester. Elsie

### metRalph in 1947 when she was working in a coffee shop inAmarillo, Texas, but 

### it

### was not until after thedeath of her husband Norman that they began to date, some

### time in the year 1952. Ralph told Elsie that he had been married but that his wife 

### was deceased. After going together for a period of 

### time, they discussed marriage and, according toElsie, they went toClovis, New Mexico, where on November 14, 1952, a wedding ceremony 

### was performed inthe home of a congregationalminister. A year or so later, Elsiefound out that Ralph did have another wife and that his name was Schanbacher. When confronted with this information, Ralph told Elsie that he did not livewith Fern, did not care for her, and that he merely used the name of Schanbacher 

### as a business name. In her deposition, Elsie stated thatwhen she got this information, she was worried about a possible bigamy charge against Ralph, that they loved each other, and that because he assured her that he did not care for his firstwife and was not living with her, she did not take any legal action. Atthe beginning of her relationship with Ralph, Elsie had three children, two boys by her firstmarriage which had ended in a divorce, and a girl by her marriage toNorman Lester, who was killed inan automobile accident. Throughout the period that she lived with Ralph, he supported these children and claimed them a s h i s own. Ralph and Elsiealso had two children, Margaret Joan Lester born June 7, 1956, in Amarillo, Texas, and Xoberta Louise Lester born September 14, 1960, inAmarillo. On both birth certificates the name Ralph I. Lester 

### is given 

### as the father. Ralph and Elsie lived together inAmarillo, Texas, where they purchased a home and lived until 1957; they lived inAustin, Texas, briefly; and they lived in~illings in

### amotel for 

### a shortperiod of 

### time and laterrented 

### a home, although Ralph continued totravel extensively inhis 

### cattle buying ventures. After 1957 the couple lived inAmarillo, Texas; Denver, Colorado; ~iles City, idontana; Great Falls, Montana; ~~Iissoula, Montana; Casper, Wyoming; and atone time, they lived for a period of two years inLewistown, Montana, where they purchased a home. In addition, they owned a home inFlorence, Montana, and rented property inButte, Bozeman, and Cheyenne, Wyoming. Allof thisproperty was purchased or rented under the name of Ralph I. Lester. In 1972 Ralph suffered a stroke inBillings, and Elsie 

### came toBillings and stayed with him atthePonderosa Inn. She returned for 

### a short period of 

### timetoCheyenne, where they had been living, and then returned toBillings atwhich 

### timethey rented a mobile home. During this 

### timeRalph's firstwife died, which was inSeptember 1973. InMarch 1974 Ralph and Elsiemoved to 3304 Winchell Lane inBillings, where they rented an apartment and lived together as husband and wife until his death. While living inthis apartment under the name of Lester, Ralph had an unlisted telephone number installed under the name Schanbacher for business purposes. Affidavits 

### were submitted by neighbors and friends of Ralph and Elsie to the effect that they socializedwith Ralph and Elsie, had dinners together, visited each other's families, and that these friends and neighbors recognized Elsieand Ralph ashusband and wife and that they held themselves out tobe the 

### same. During the 24 years that Ralph and Elsie lived together, according toElsie, he provided for her very 

### well and also for her children. While they did have financialhardships, he had never wanted her towork. While living in ~illings, Ralph referred tohis firstwife, Fern, as "Aunt Fern", and his daughter Joan knew her asAunt Fern. After Fern's death, Ralph wanted the family tomove into his home

on Delphinium Avenue, but Elsie said she

### was reluctant to

move there because the home contained Fern's furniture and possessions. Also, the house was used by the children of his other marriage as a stopover place while visiting in Billings. However, Ralph, Elsieand Joan did care for this second home and went there atleastonce a week toclean 

### it and care for the yard. From 1952 until his death, Ralph and ElsieLester held themselves out ashusband and wife. Various expenses which



### were incurred during the course of thisrelationship 

### were paid for and receipted inthe name of Ralph Lester. During Ralph's frequent buying trips he sentmoney to Elsieand the childrenby Western Union asRalph Lester. Friends and neighbors knew Ralph and Elsie

### as husband and wife. They received Christmas cards, wedding invitations, and other mail addressed toMr. and Mrs. Ralph Lester. The public school system recognized themarriage of Ralph and Elsiein connection with the education of their children, and the familymedical records indicate the marriage status of Ralph and Elsie 

### as do the birth certificates of the two children. Ralph and ElsieLester 

### were listed inthe 1975 and 1976 Billings City Directory ashusband and wife. It

### was not until Xalph's 

### last illness that Elsie

### met any of his children of hismarriage toFern. An affidavit submitted for the court's consideration by a nurse's aid stated thatbecause Elsiehad been in such constant attendance of Ralph during his lastillness, she asked 

### ~lsie, inthe presence of Ralph's children by Fern, what relationship she was. Elsie identified herself as a "friend" and not as thewife of Ralph. Elsieanswers that she did not want to embarrass the children of the firstmarriage by revealing the relationship she had had with their father. Atthe time of Ralph's death, his oldest daughter Edith took charge of the funeral, and he was buried beside his firstwife Fern. Ralph filed a joint income tax under the name of Schanbacher and giving his wife's name asFern until 1972. Thereafter, he filed as a "singleman." In 1975 Ralph made

a Willinwhich he failed tomention that he had 

### a wife, the appellant Elsie, and that he had two children by her. Following Ralph's death on November 11, 1976, thisWillwas submitted toprobate. The Willwas submitted by Edith Ellis, one of his daughters, who filed an application for

an informal probate of theWilland tobe appointed personal representative therein. On November 15, an order of informal probate of theWilland the appointment of the personal representative 

### was signed by the clerk of the DistrictCourt and 

### letterswere issued toEdith Ellisas personal representative. On February 2, 1977, the demand forbond and the demand for notice 

### were filedby Elsie

### as a surviving wife of Ralph and the mother of the two surviving children, Margaret Joan Lester and Roberta Louise Lester. On the following day, a petition for supervised administration and a notice of claim and petition by pretermitted children 

### were filed. An amended verified petition for supervised administration, and the amended notice of claim and petition by pretermitted children



### were served inthismatter on February 10, 1977.hereafter, Elsiefiled on May 

### 4, 1977, a petition for family allowance, petition for exempt property, petition for

a homestead allowance, and a widow's elective share therein. On August 18, 1977, the deposition of Elsiewas taken in thismatter. On November 3, 1977, the personal representative filed a memorandum and motion for summary judgment. Hearing on the motion was setfor November 28, 1977, but the hearing was not held. The matter was finally heard in Se2tember 1978, atwhich 

### time findings of fact and conclusions of law 

### weremade by the DistrictCourt. On October 13, 1978, a brief hearing was held in the chambers on petitioner's motion toamend the findings of fact and conclusions of law, which was denied by the District Court on October 13, 1978. We need not 

### set forth the issues as stated by counsel

on appeal, but 

### set them forthbelow as

### we see controlling in this case. Here there are genuine issues of material fact precluding summary judgment on the two following issues: 1. Whether therewas a common law marriage between Ralph and Elsie after the death of Fern? 2. Are the two children of the relationship of Ralph and Elsietobe considered issue of the marriage of the decedent? While the 1952 marriage between these parties was prohibited by virtue of Ralph's preexisting marriage to Fern, upon her death inSeptember 1973, a factquestion of whether this impediment to the marriage was removed 

### is raised by our statute. See Stevens v. Woodmen of the world (1937), 105Mont. 121, 71 P.2d 898, 905. From documents submitted by Elsie, there was evidence that, after the death of Fern, Ralph and Elsie lived together asman and wife,firstina mobile home inthe Lockwood addition, and then in

an apartment at3304 Winchell Lane. They lived atthis residence until Ralph's death on November 11, 1976. Following Fern's death, the children of the second union and Elsieand Ralph cared for the residence that had been purchased by Ralph forhiswife Fern, looking after the lawn, 

### etc., and maintaining the property until Ralph's death. From the record before the court, these facts

### were not contested by thepersonal representative. Therefore, a question arises under section 48-310(2),R.C.N. 1947, now section 40-1-401(2) MCA, astowhether or not Elsie and Ralph 

### were lawfully married. In 1975, theMontana Legislature enacted the national draft of the Uniform Marriage and Divorce Act, which became sections 48-301 through 48-341, R.C.M. 1947, now sections 40-1-101 through 40-4-220 MCA. Section 48-302, R.C.M. 1947,

now sections 40-1-101 and 40-4-101 MCA, 

### set forth thepurpose of theAct as follows: "This act shallbe liberally construed and applied topromote 

### its underlying purposes, which are to: "(1)provide adequate procedures for the solemnization and registration of marriage; "(2) strengthen and preserve the integrity of marriage and safeguard family relationships; "(3)promote the amicable settlement of disputes that have arisenbetween parties toa marriage; 

### "(4) mitigate thepotential harm to the spouses and their children caused by the process of legal dissolution of marriage; 

### "(5)make reasonable provision for spouse and minor children during and after litigation; and "(6) make the law of legal dissolution of marriage effective for dealing with the realitites of 

### matrimonial experienceby making irretrievablebreakdown of themarriage relationship the sole basis for its dissolution."Section 48-310 (2), R.C.M. 1947, now section 40-1-401 (2) MCA, provides: 

### "(2) Parties to a marriage prohibited under this sectionwho cohabit after removal of the impediment are lawfully married asof the date of the removal of the impediment." The above statutes embody a progressive policy long followed by such courts as the Circuit Court of Appeals of the DistrictColumbia which held inMatthews v. Britton (D.C. Cir. 1962), 303 F.2d 408, 409: "Nevertheless, as long as the impediment of Earnestine's lawful marriage toJohnson existed, she and Harry Matthews could not lawfully be or become husband and wife. However, it 

### is settled that if parties agree tobe husband and wife in ignorance of an impediment to lawful matrimony, then the removal of that impediment results ina common-law marriage between the parties if they have continued to cohabit and live together as husband and wife 

# . 

# . . the same result obtains even if parties have knowledge of the impediment atthe 

### timethey agreed tobe married. It is not tobe expected that parties once having agreed to be married 

### willdeem it necessary to agree to do so again when an 

### earlier marriage is terminated or some other ban tounion 

### is eliminated." See, the Commission Comment to Section 207(b), Uniform Marriage and Divorce Act, 9 

### U.L.A. 470. In addition, had not section 48-310(2) been enacted, the factremains that Elsie could, under the fact situation presented to the Court here, still have been a surviving widow of Ralph by virtue of 

### a valid common law marriage after the death of Fern in 1973. Montana has long recognized the validity of common law marriages and this 

### is carried forward inthe Uniform Marriage and Divorce Act in section 48-314, R.C.M. 1947, now section 40-1-403 NCA. The second issue of whether the children of the union of these two people areissue of the decedent 

### is a fact issuewhich cannot be decided by summary judgment. When the Uniform Marriage and Divorce Act was adopted by our legisla-ture, several sections

### were devoted totheprotection of the children of a marriage. These 

### relate to strengthening and preserving the integrity of marriage and safeguarding family relationships; tothe promotion of settlement of disputes; tomitigation of harm to spouses and their children caused by process of legal dissolution of marriage; and toreasonable provisions for a spouse and minor children after litigation. These 

### items should be considered inthe fact situation 

### we have here. The question tobe decided on a motion for summary judgment iswhether there 

### is a genuine issue of material fact and not how that issue should be determined. Baylor v. Jacobson (1976), 170 Mont. 234, 552 P.2d 55; Fulton v. Clark (1975), 167Mont. 399, 538 P.2d 1371. We have further noted that summary judgment is not a proper tool for resolving disputed issues of fact and 

### is accordingly improper whenever

a material factualmatter 

### is indispute. Engebretson 

### v. Putnam (1977), Mont. 

## , 571 P.2d 368, 34 St.Rep. 1241; Duncan v. Rockwell I'lfg. Co. (1977), Mont. I 567 P.2d 936, 34 St.Rep. 821; Bahm v. Dormanen (1975), 168 Mont. 408, 543 P.2d 379. In Engebretson, this Court noted: "The purpose of the summary judgment procedure 

### is to encourage judicial economy through the eilimination of unnecessary trial, delay and expense. [Citationsomitted.] Summary judgment is not a substitute for trial, however, and is inappropriate when genuine issues of material fact remain tobe litigated 

# . . ." 571 P.2d at 370. For the reasons above 

### set forth, the summary judgment of the DistrictCourt 

### is reversed. The matter is remanded for 

### trial on the

### merits.

### We concur:

Ch' f 

### Justlce



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