No. 12381 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

IN THE MATTER OF THE ESTATE OF 

VIOLET SMITH STAVENS , Deceased. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record : 

For Appellant : 

Sandall, Moses and Cavan, Billings, Montana 

D. Frank Kampfe argued, Billings, Montana 

For Respondent: 

Evalyn B. Carson argued, Billings, Montana 

Submitted: March 28, 1973 

Decided : mfi 8 ? 1973 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order entered in the district 

court of the thirteenth judicial district, Yellowstone County, 

denying ~etitioner's motion for a new trial. 

The dispute in this case concerns a determinatian of the 

proper heir or heirs of the deceased Violet Smith Slavens. 

Decedent, hereinafter referred to as Mrs. Slavens, died intestate 

in September 1971, Rose Smith Meyers, Mrs, Slavens' sister, was 

appointed administratrix. Lon Marsh, petitioner here, then petitioned the court to determine heirship basing his claim on an 

alleged common law marriage between himself and Mrs, Slavens. The 

trial court found against the petitioner and we affirm. 

Mrs. Slavens and Marsh were married in 1960 in Roundup, 

Montana. After seven years of marriage, the parties were divorced 

in June 1967. As part of the property settlement Mrs. Slavens 

received a ranch in Laurel, Montana and Marsh received an apartment 

building in Billings, Montana, Both parties being avid race horse 

enthusiasts, they continued to conduct certain business transactions jointly. Marsh managed the ranch and the race horses, 

while Mrs. Slavens collected rents on ~arsh's property in Billings 

for him, Occasionally Marsh and Mrs. Slavens went on horse racing 

trips together; the parties were, at different times, seen at 

motels together after their divorce and petitioner alleges they had 

resumed marital relations, 

The major portion of the controversy concerns whether the 

parties were living together in Mrs, Slavens' apartment in Billings. 

This is significant because, if true, it would add credence to Marsh's 

contention that a common law marriage existed at a time subsequent 

to their divorce. Marsh contended that shortly after their divorce 

they resumed a marriage relationship not unlike that which existed 

prior to their divorce, He further contended he and Mrs, Slavens 

agreed to live as husband and wife and they consummated the marriage. 
Petitioner introduced considerable testimony and evidence 

tending to show that he lived at Mrs. Slavens' apartment, at 

least some of the time. Marsh received mail at the apartment, 

often cooked dinner there, watched television there, and had his 

own key to the apartment. 

On the other hand, there was testimony by the apartment 

house manager that Marsh did not live there and Mrs. Slavens, in 

fact, lived alone. Further testimony ~f Mrs, Slavens' sisters 

indicated that, to her family, she was known as a single woman 

after her divorce from Marsh and she continued to regard herself 

as single until her death. In addition, respondents, the natural 

heirs of Mrs. Slavens, introduced numerous exhibits showing that 

Mrs. Slavens held herself out as a single woman after her divorce. 

These exhibits included income tax returns, retirement claims, 

doctor and hospital bills, trade bills, and correspondence, 

While the fact that Marsh a.nd Mrs. Slavens might have 

lived together is important, it is only one of several factors to 

be considered in determining whether a common law marriage existed. 

The Court is aware the presumption of a moral and legal relationship is a strong one. We noted in Welch v. All Persons, 78 Mont. 

370, 384, 254 P, 179: 

11 The presumption in favor of matrimony is one 

of the strongest known to the law, I I 

The Court further noted in Welch that marriage does not arise by 

the mere fact of cohabitation alone. 

Section 48-101, R,C.M, 1947, states what constitutes a 

marriage : 

I I Marriage is a personal relation arising out 

of a civil contract, to which the consent of 

parties capable of making it is necessary, 

Consent alone will nat constitute marriage; 

it must be followed by a solemnization, or by 

mutual and public assumption of the marital 

relation." 

In Welch and more recently in Miller v. Townsend Lumber 

Co., 152 Mont. 210, 448 P.2d 148, the Court carefully considered 

section 48-101, R.C.M.1947. Applying that section to the facts 
here, we find that the district court had sufficient evidence 

to find a common lzw marriage did not exist between Marsh and 

Mrs. Slavens subsequent to their divorce in 1967. 

Petitioner relies on the recent case of In the Matter of 

the Estate of Swanson, - Mont , , 502 P,2d 33, 29 St.Rep, 

819. Marsh contends Swanson is identical to his own case, We 

do not find the similarity between the circumstances of the two 

cases as does petitioner. In Swanson, Hazel Hzefner Swanson held 

herself out to friends and neighbors as the wife of the deceased 

George Swanson. Violet Smith Slavens did not hold herself out 

as the wife of Lon Marsh, Here, the transcript contains testimony 

that other people assumed or considered then to be married but 

there is no showing that Mrs. Slavens ever held herself out as 

the wife of Marsh after the divorce, On the contrary, the documentary evidence would indicate that quite the opposite was true. 

In the second appeal of Welch v. All Persons, 85 Mont, 114, 

133, 278 P. 110, this Court said: 

"The consent of the parties must be mutual. * * * While the consent need not be expressed 

in any particular form * * * it must be given 

with such an intent on the Dart of each of 

the parties that marriage cinnot be said to 

steal upon them unawares. 'One cannot become 

married unwittingly or accidentally. The 

consent required by our statutes, as well as 

the statutes of every state, and by the common 

law, must be seriously given with the deliberate 

intention that marriage result presently therefrom. " (Emphasis added) , 

Here, there simply was no showing, other than the alleged 

cohabitation, that Mrs. Slavens desired to create a new marriage 

ar consented to a resumption of a marital relationship. Had the 

parties, in fact, continually cohabitated after their divorce, 

it is still only evidence of a marriage, not conclusive of the 

marriage itself. We are not persuaded that, on the basis of the 

alleged cohabitation, there existed a valid common law marriage. 

The trial court had ample justification and sufficient 

evidence to find that no common law marriage existed between the 
parties and that heirs of the decedent be determined in accordance with the laws of intestate succession, based on her single 

status, 

The judgment of the district court is affirmed. 

i Associate Justice 

We Concur: 

Associate austices. 

C 

Hon. Edward T. Bussault, District 

Judge, sitting far Chief Justice 

James T. Harrison.