No. 14605 

THE sUPF?ERE COW OF THE STATE OF MXI?ANA 

-- 

IN THE IWlTER OF THE ESTATE 

RALPH I. scxmEAm, 

Deceased. 

Appeal fm: District Court of the Thirteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant : 

Robert L. Stephens, Jr., Billings, mntana 

For Respondent : 

Berger, Anderson, Sinclair & Murphy, Billings, l~ntana 

Efmer Dolve, Billings, mntana 

Suhnitted on briefs: Nbrch 29, 1979 

Decided: MAY 3 0 1979 

Filed: . MAY 8 9 198 -. - 
Mr. Justice John 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 Nat Allen 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 also denied a motion for summary 

judgment of Elsie Lester, Margaret Joan Lester, and Roberta 

Louise Lester. 

In this opinion, Ralph I. Schanbacher, the deceased 

herein, will be referred to as "Ralph" and Elsie Jane 

Lester, one of the appellants, will be referred to as 

"Elsie". Ralph I. Schanbacher, also known 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, the personal representative 

herein. This marriage continued until Fern's death in 

Billings, Montana, in September 1973. 

Throughout his life Ralph was a cattle buyer. He also 

owned and operated several ranch properties and a feedlot at 

Lewistown, Montana. In this business he was required to 

spend considerable time on the road and away from his family. 

This was so not only during his marriage to Fern, but later, 

in his living arrangement with Elsie. Elsie was the widow 

of Norman Lester, and was introduced to Ralph by Norman 

Lester, who introduced Ralph as his cousin Ralph Lester. 

Elsie met Ralph in 1947 when she was working in a coffee 

shop in Amarillo, Texas, but it was not until after the 
death of her husband Norman that they began to date, sometime 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 to Elsie, they 

went to Clovis, New Mexico, where on November 14, 1952, a 

wedding ceremony was performed in the home of a congregational minister. A year or so later, Elsie found 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 live with Fern, did not care for her, 

and that he merely used the name of Schanbacher as a business name. In her deposition, Elsie stated that when 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 

first wife and was not living with her, she did not take any 

legal action. 

At the beginning of her relationship with Ralph, Elsie 

had three children, two boys by her first marriage which had 

ended in a divorce, and a girl by her marriage to Norman 

Lester, who was killed in an 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 Elsie also 

had two children, Margaret Joan Lester born June 7, 1956, in 

Amarillo, Texas, and Xoberta Louise Lester born September 

14, 1960, in Amarillo. On both birth certificates the name 

Ralph I. Lester is given as the father. 

Ralph and Elsie lived together in Amarillo, Texas, 

where they purchased a home and lived until 1957; they lived 

in Austin, Texas, briefly; and they lived in ~illings in a 
motel for a short period of time and later rented a home, 

although Ralph continued to travel extensively in his cattle 

buying ventures. 

After 1957 the couple lived in Amarillo, Texas; Denver, 

Colorado; ~iles City, idontana; Great Falls, Montana; ~~Iissoula, 

Montana; Casper, Wyoming; and at one time, they lived for a 

period of two years in Lewistown, Montana, where they purchased a home. In addition, they owned a home in Florence, 

Montana, and rented property in Butte, Bozeman, and Cheyenne, 

Wyoming. All of this property was purchased or rented under 

the name of Ralph I. Lester. In 1972 Ralph suffered a 

stroke in Billings, and Elsie came to Billings and stayed 

with him at the Ponderosa Inn. She returned for a short 

period of time to Cheyenne, where they had been living, and 

then returned to Billings at which time they rented a mobile 

home. During this time Ralph's first wife died, which was 

in September 1973. 

In March 1974 Ralph and Elsie moved to 3304 Winchell 

Lane in Billings, where they rented an apartment and lived 

together as husband and wife until his death. While living 

in this 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 socialized with Ralph and Elsie, had dinners together, 

visited each other's families, and that these friends and 

neighbors recognized Elsie and Ralph as husband and wife and 

that they held themselves out to be the same. 

During the 24 years that Ralph and Elsie lived together, according to Elsie, he provided for her very well 

and also for her children. While they did have financial 
hardships, he had never wanted her to work. While living in 

~illings, Ralph referred to his first wife, Fern, as "Aunt 

Fern", and his daughter Joan knew her as Aunt Fern. After 

Fern's death, Ralph wanted the family to move 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, Elsie and Joan did care for this 

second home and went there at least once a week to clean it 

and care for the yard. 

From 1952 until his death, Ralph and Elsie Lester held 

themselves out as husband and wife. Various expenses which 

were incurred during the course of this relationship were 

paid for and receipted in the name of Ralph Lester. During 

Ralph's frequent buying trips he sent money to Elsie and the 

children by Western Union as Ralph Lester. Friends and 

neighbors knew Ralph and Elsie as husband and wife. They 

received Christmas cards, wedding invitations, and other 

mail addressed to Mr. and Mrs. Ralph Lester. The public 

school system recognized the marriage of Ralph and Elsie in 

connection with the education of their children, and the 

family medical records indicate the marriage status of Ralph 

and Elsie as do the birth certificates of the two children. 

Ralph and Elsie Lester were listed in the 1975 and 1976 

Billings City Directory as husband and wife. 

It was not until Xalph's last illness that Elsie met 

any of his children of his marriage to Fern. An affidavit 

submitted for the court's consideration by a nurse's aid 

stated that because Elsie had been in such constant attendance of Ralph during his last illness, she asked ~lsie, in 
the presence of Ralph's children by Fern, what relationship 

she was. Elsie identified herself as a "friend" and not as 

the wife of Ralph. Elsie answers that she did not want to 

embarrass the children of the first marriage by revealing 

the relationship she had had with their father. At the time 

of Ralph's death, his oldest daughter Edith took charge of 

the funeral, and he was buried beside his first wife Fern. 

Ralph filed a joint income tax under the name of Schanbacher and giving his wife's name as Fern until 1972. 

Thereafter, he filed as a "single man." In 1975 Ralph made 

a Will in which he failed to mention that he had a wife, the 

appellant Elsie, and that he had two children by her. 

Following Ralph's death on November 11, 1976, this Will was 

submitted to probate. The Will was submitted by Edith 

Ellis, one of his daughters, who filed an application for 

an informal probate of the Will and to be appointed personal 

representative therein. On November 15, an order of informal probate of the Will and the appointment of the 

personal representative was signed by the clerk of the 

District Court and letters were issued to Edith Ellis as 

personal representative. 

On February 2, 1977, the demand for bond and the demand 

for notice were filed by 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 in this matter on February 10, 1977. 
 hereafter, Elsie filed 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 Elsie was taken in 

this matter. On November 3, 1977, the personal representative filed a memorandum and motion for summary judgment. 

Hearing on the motion was set for November 28, 1977, but the 

hearing was not held. The matter was finally heard in 

Se2tember 1978, at which time findings of fact and conclusions of law were made by the District Court. On October 

13, 1978, a brief hearing was held in the chambers on petitioner's motion to amend 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 forth below 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 there was a common law marriage between 

Ralph and Elsie after the death of Fern? 

2. Are the two children of the relationship of Ralph 

and Elsie to be 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 in September 1973, a fact question of 

whether this impediment to the marriage was removed is 

raised by our statute. See Stevens v. Woodmen of the world 

(1937), 105 Mont. 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 as man and wife, 
first in a mobile home in the Lockwood addition, and then in 

an apartment at 3304 Winchell Lane. They lived at this 

residence until Ralph's death on November 11, 1976. Following Fern's death, the children of the second union and 

Elsie and Ralph cared for the residence that had been purchased by Ralph for his wife 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 the personal representative. Therefore, a 

question arises under section 48-310(2),R.C.N. 1947, now 

section 40-1-401(2) MCA, as to whether or not Elsie and 

Ralph were lawfully married. 

In 1975, the Montana 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 the purpose of the Act as follows: 

"This act shall be liberally construed and applied to promote 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 arisen between parties to a marriage; 

" (4) mitigate the potential 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 experience by making irretrievable breakdown of the marriage 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 

section who cohabit after removal of the impediment 

are lawfully married as of 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 District Columbia which held in Matthews v. Britton 

(D.C. Cir. 1962), 303 F.2d 408, 409: 

"Nevertheless, as long as the impediment of 

Earnestine's lawful marriage to Johnson existed, 

she and Harry Matthews could not lawfully be or 

become husband and wife. However, it is settled 

that if parties agree to be husband and wife in 

ignorance of an impediment to lawful matrimony, 

then the removal of that impediment results in a 

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 

at the time they agreed to be married. It is not 

to be expected that parties once having agreed to 

be married will deem it necessary to agree to do 

so again when an earlier marriage is terminated 

or some other ban to union 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 fact remains 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 in the 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 are issue of the decedent is a fact 

issue which cannot be decided by summary judgment. When the 

Uniform Marriage and Divorce Act was adopted by our legisla- 
ture, several sections were devoted to the protection of the 

children of a marriage. These relate to strengthening and 

preserving the integrity of marriage and safeguarding family 

relationships; to the promotion of settlement of disputes; 

to mitigation of harm to spouses and their children caused 

by process of legal dissolution of marriage; and to reasonable provisions for a spouse and minor children after litigation. These items should be considered in the fact situation we have here. 

The question to be decided on a motion for summary 

judgment is whether 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), 167 Mont. 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 factual matter is in dispute. 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. [Citations omitted.] Summary judgment 

is not a substitute for trial, however, and is 

inappropriate when genuine issues of material 

fact remain to be litigated . . ." 571 P.2d at 

370. 

For the reasons above set forth, the summary judgment 

of the District Court is reversed. The matter is remanded 

for trial on the merits. 
We concur: 

Ch' f Justlce tg