No. 12158 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

IN THE MATTER OF THE ESTATE OF 

GEORGE WILLIAM SWANSON, Deceased. 

Appeal from: District Court of the First Judicial District, 

Honorable Victor H. Fall, Judge presiding. 

Counsel of Record: 

For Appellant : 

Lloyd J. Skedd argued, Helena, Montana. 

For Respondent: 

Harrison, Loendorf and Poston, Helena, Montana. 

Jerome T. Loendorf argued, Helena, Montana. 

Submitted: September 25, 1972 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is taken from the district court of the 

first judicial district of the State of Montana in and for the 

County of Lewis and Clark and represents a contest between the 

petitions for letters%.of administration which were filed by 

Hazel Haefner Swanson, the respondent, and Ralph A. Swanson, 

the appellant. Hazel Haefner Swanson's petition was based upon 

her claim that she was the wife of George William Swanson, the 

decedent. Ralph A. Swanson's petition was based upon the claim 

that Hazel Haefner Swanson was not the wife of the decedent and 

asserted his right as surviving brother to be appointed administrator. The district court found Hazel Haefner Swanson to be 

the wife of the decedent and granted her petition. Petitioner 

Ralph A. Swanson appeals. 

Appellant, in his enumerated specifications of error to 

this Court, contests the pertinent findings of fact and conclusions of law which bear on the singular legal question of whether 

or not the relationship between Hazel Haefner Swanson and the 

decedent meets the criteria of a valid marriage. 

George William Swanson died intestate in Helena, Montana, 

on July 18, 1971, being at the time of his death a resident of 

East Helena where he owned a dwelling house in which he and Hazel 

had lived since 1961. Except for the matter now in controversy, 

George Swanson had never been married and had no children. George 

Swanson was 62 when he died and was survived by three sisters and 

by two brothers, one of which is the appellant, Ralph A. Swanson. 

George Swanson and Hazel Haefner Swanson met for the first 

time in July 1957, in East Helena, where she and her husband 

Herbert Haefner were living. In 1959 a mutual attraction developed 

between Hazel and George at which time George wanted her to divorce 

her husband. However, in the same year Hazel followed her husband 
to Europe where he had been transferred by the U. S. Army. 

In 1961, Hazel Haefner returned to East Helena and obtained a job for a brief time at the Diamond S Ranch at Boulder, 

Montana, as a waitress. Shortly thereafter, she returned to 

East Helena and commenced living with George Swanson as his housekeeper until she was divorced in January 1963. 

In June 1963, Hazel and George bought wedding rings and 

mutually declared their marriage. Thereafter they openly lived 

together and neighbors testified that they assumed them to be 

married. Throughout the period following 1963, Hazel conducted 

business transactions, of which records were introduced, under 

the name of Hazel Haefner whereas in her personal relationships 

with neighbors and in personal correspondence she received she 

was known as Hazel Swanson. 

Apparently, the relatives of George Swanson chose to give 

no recognition to the marriage of George and Hazel and simply 

referred to her as Hazel as did members of the community of Helena 

and East Helena whose friendships with George were more casual in 

nature. 

Following George Swanson's death, he left an estate consisting of real and personal property which was the subject of a 

petition for letters of administration filed by Hazel Haefner 

Swanson on July 20, 1971, followed by a petition in opposition 

to that of Hazel's which was filed July 23, 1971, by Ralph A. 

Swanson, brother of the decedent. Hearing was scheduled and proceeded before the district court on August 2, 1971, followed by 

the submission of proposed findings of fact and conclusions of 

law by the parties. Following the district court's order appointing Hazel Haefner Swanson the administratrix, the appellant Ralph 

A. Swanson appealed to this Court. 
Appellant contends that under the applicable law of this 

state including section 48-101, R.C.M. 1947, and case law including Welch v. All Persons, 78 Mont. 370, 254 P. 179, and other 

cases, the relationship between Hazel and George was illicit at 

its inception and that the burden of proving that the relationship was changed to a lawful one was never met by the respondent. 

Appellant argues that there was never a common, uniform, and undivided repute of marriage in the community based upon the evidence produced at the hearing including documents and testimony, 

and thus George and Hazel's relationship remained illicit. Appellant strongly urges that the continued use of the name Hazel 

Haefner throughout the alleged common law marriage was persuasive evidence of the intent of the parties. 

Respondent's brief is in substance a recitation of the 

evidence that was produced before the district court and to the 

substantive nature of which our attention has been directed to 

in this appeal. 

Incorporating the respective arguments and reviewing the 

facts in this case, it is necessary to set out the statutory 

language of section 48-101, R.C.M. 1947, to discuss the present 

case : 

"What constitutes a marriage. 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 

not constitute marriage;-it must be followed 

by a solemnization, 02 by mutual and public 

assumption of the marital relation.'' (~mpKasis 

supplied.) 

In appellant's main argument, it is contended that the 

relationship of George and Hazel was illicit at the outset in 

1961 and remained illicit throughout the period until George 

Swanson's death in 1971. 

In viewing the record, it appears that appellant would 
have to prove the allegation that George and Hazel had an 

illicit relationship from January 1961 until her divorce from 

Herbert Haefner in 1963 or up to the date of her alleged marriage 

to George in June 1963. The only testimony relating to that 

period of time was given by Hazel who testified that she moved 

into George's house as his housekeeper, that they had separate 

bedrooms, and that the relationship was honorable. No testimony 

was shown to disprove the testimony of Hazel and thus appellant's 

allegation of an illicit relationship would fail. 

However, for the sake of argument, assuming appellant's 

contentions that the relationship at the outset was illicit, 

appellant argues that the respondent has the burden of proving 

that the relationship was made lawful by subsequent actions of 

Hazel and George as stated in Welch v. All Persons. 

" * * * If the relationship was illicit in the 

beginning the burden is upon the party asserting the validity of the marriage to show that 

the unlawful relationship changed to a lawful 

one. It 

It was on this point that the bulk of the testimony of 

the witnesses was produced along with a quantity of documents, 

driver's license, bank accounts, purchase agreements bearing the 

name of Hazel Haefner. All of this evidence was introduced by 

the appellant to show no common, uniform, undivided repukof 

marriage and to show that the use of respondent's former married 

name of Hazel Haefner was persuasive evidence of the intent of 

the parties. 

In view of all of the testimony given by the various 

witnesses it is crucial to the determination of the validity of 

this relationship to determine what exactly was the intent of the 

parties. Hazel's testimony describing her marriage to George was 

given as follows: 
"Q. When were you and George Swanson married? 

A. In 1963, following my divorce. 

"Q. And by what type of proceeding were you 

married? A. By common consent, I believe you 

would say. He slipped the rings on and said, 

'I don't know how you say this, but with this 

we are married.' And I said, 'I think it's 

more formal than that. It's something about 

with this ring I three wed.' But George always 

got his words tangled up. 

"Q. Anyway, he gave you a wedding ring and 

said, 'We are married'? A. Yes." 

Following that mutual expression, there was a honeymom 

and thereafter, Hazel Haefner Swanson continued to use the name 

of Hazel Haefner on her driver's license, checking account and 

for other business purposes as was found in the district court's 

finding of fact No. VIII. Otherwise they lived openly as man 

and wife in the community of East Helena to the understanding 

of their neighbors with Hazel receiving personal mail as Mrs. 

Swanson. 

On review of the record in the present case we find 

sufficient evidence to support the findings of fact and conclusions of law of the district court, and in pertinent point findings of fact VI, 1 VIII, IX and conclusionf of law I, which 

are set out below: 

FINDINGS OF FACT 

VI. 

\' That the deceased, George W. Swanson, purchased wedding rings for the Petitioner, Hazel Swanson, and that they were 

married by verbal consent, and by a mutual and public assumption 

of the marital relation in 1963. 

VII. 

That from the time George W. Swanson and Hazel Swanson 

were married in 1963 they lived together as man and wife in East 

Helena, Montana, until the death of George W. Swanson on or about 
the 18th day of J.uly, 1971. 

VIII. 

That after their marriage in 1963, the petitioner, Hazel 

Swanson, continued to use her former name, Hazel Haefner, for 

business purposes. 

IX. 

That George W. Swanson and Hazel Swanson were known as 

man and wife in East Helena, Montana, the community in which 

they lived. 

CONCLUSIONS OF LAW 

That Hazel Swanson was married to the deceased George 

W. Swanson by verbal consent and by a mutual and public assumption of the marital relation in 1963. I/ 

As a matter of law it should be pointed out that common 

law marriages entered into validly are recognized. The appellant would place the burden of proof on the respondent to prove 

the validity or lawfulness of her relationship with George 

Swanson. A more thorough statement of the law is contained in 

Welch v. All Persons, which gave proper recognition before the 

law to common law marriages. It was stated, I' * * * The presumption in favor of matrimony is one of the strongest known to the 

law." Following shortly thereafter in Welch this Court stated, 

"Every presumption will be indulged in favor of the legality of 

a common-law marriage in the same way an'd to the same extent as 

the law indulges them in favor of a ceremonial marriage." 

The vitality of belief in the presumption of the validity 

R.C.M. 1947, 

of a marriage is found in section 93-1301-7/which provides for a 

disputable presumption regarding marriage: 

"30. That a man and a woman deporting them- 
selves as husband and wife have entered into 

a lawful contract of marriage." 

Every intendment of the law is in favor of matrimony which 

presumes morality and not immorality, marriage and not concubinage, 

legitimacy and not bastardy. Hadley v. Rash, 21 Mont. 170, 53 

P. 312; State v. Newrnan, 66 Mont. 180, 213 P. 805. Contrary to 

appellant's position attacking the validity of the marriage of 

Hazel and George, absent evidence of an illicit relationship in 

R.C.M. 1947 

1963, the disputable presumption of section 93-1301-7,jfnust be 

repelled by the party disputing it and this may be done only by 

satisfactory evidence. Elliott v. Industrial Accident Board, 101 

Mont. 246, 53 P.2d 451. 

The district court has entered its findings of fact and 

conclusions of law based on the evidence before it which was also 

presented to this Court in this appeal. As stated in Bender v. 

473, 

Bender, 144 Mont. 470,/397 P.2d 957: 

"There is no dispute that in an equity case 

this court should review the evidence as well 

as the law, however, its review is limited to 

the extent necessary to determine whether there 

is substantial evidence to support the findings 

of fact made by the trial court and if such 

findings are sufficient to support the conclusions of law based thereon. (Citing cases.)" 

We find sufficient evidence and accordingly the judgment of the 

district court is affirmed. /' 

Associate Justice / 

Mr. Chief Justice James T. Harrison did not participate in this 

cause. 

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