No. 12381 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

INTHE MATTER OF THE ESTATE OF VIOLET SMITH STAVENS

## ,Deceased.

Appeal from: District Court of the ThirteenthJudicial 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 :

# mfi8?

### 1973

### Mr. JusticeJohn 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 orheirs 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, petitionerhere, then petitioned the court todetermineheirship basing his claim on an alleged common law marriage between himself and Mrs, Slavens. The trialcourt found against the petitioner and 

### we affirm. 

### Mrs. Slavens and Marsh were married in 1960 inRoundup, Montana. After seven years of marriage, the partieswere divorced inJune 1967. 

### As part of the property settlement 

### Mrs. Slavens received a ranch inLaurel, Montana and Marsh received an apartment building in Billings, Montana, Both parties being avid race horse enthusiasts, they continued toconduct certainbusiness transactionsjointly. Marsh managed the ranch and the race horses, while 

### Mrs. Slavens collected rents on ~arsh's property inBillings forhim, Occasionally Marsh and 

### Mrs. Slavens went on horse racing trips together; the parties were, atdifferent 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 inBillings. This is significantbecause, if true, itwould add credence toMarsh's contention that a common law marriage existed ata time subsequent totheir divorce. Marsh contended that shortlyafter 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 ashusband and wife and they consummated the marriage.Petitioner introduced considerable testimony and evidence tending to show that he lived atMrs. Slavens' apartment, at least some of the time. Marsh received mail atthe apartment, often cooked dinner there, watched television there, and had his
own key to the apartment. On the otherhand, 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, toher family, shewas known as a singlewoman afterher divorce from Marsh and she continued to regard herself
as singleuntil her death. In addition, respondents, the natural heirs of Mrs. Slavens, introduced numerous exhibits showing that Mrs. Slavens held herself out as a singlewoman afterher divorce. These exhibits included income tax returns, retirement claims, doctor and hospitalbills, trade bills, and correspondence, While the fact that Marsh a.ndMrs. 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 legalrelationship 

### isa strong one. We noted inWelch v. AllPersons, 78 Mont. 370, 384, 254 

### P, 179:

11

The presumption in favor of matrimony isone of the strongest known to the law, I I The Court furthernoted inWelch that marriage does not ariseby the mere fact of cohabitation alone. Section48-101, R,C.M, 1947, stateswhat constitutes a marriage:
IIMarriage 

### is a personal relation arisingout of a civil contract, towhich the consent of parties capable of making it isnecessary, Consent alone 

### willnat constitute marriage; it must be followed by a solemnization, orby mutual and public assumption of the marital relation." 

### In Welch and more recently inMiller 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 factshere, we find that the district court had sufficient evidence to find a common lzw marriage did not exist between Marsh and 

### Mrs. Slavens subsequent totheir 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 isidentical tohis own case, We do not find the similaritybetween 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 didnot hold herself out
as thewife of Lon Marsh, Here, the transcript contains testimony that other people assumed or considered then tobe married but there 

### isno 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 oppositewas true. In the second appeal of Welch v. AllPersons, 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 inany particular form

# **

# * it must be given with such an intent on the Dart of each of the parties that marriage cinnot be said to stealupon them unawares. 'One cannot become married unwittingly or accidentally. The consent required by our statutes, aswell 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 tocreate a new marriage
arconsented toa resumption of a marital relationship. Had the parties, infact, continually cohabitated after their divorce, it is stillonly evidence of a marriage, not conclusive of the marriage itself. We arenot persuaded that, on the basis of the alleged cohabitation, there existed a valid common law marriage. The trialcourt had ample justification and sufficient evidence to find that no common law marriage existed between theparties and that heirs of the decedent be determined inaccordance with the laws of intestate succession, based on her single status,The judgment of the district court 

### is affirmed. 

# i Associate Justice

We Concur:

Associateaustices.

C Hon. Edward 

### T. Bussault, District Judge, sitting farChief Justice James T. Harrison.