No. 12158 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

INTHE MATTER OF THE ESTATE OF GEORGE WILLIAM SWANSON, Deceased.

Appeal from: District Court of theFirstJudicialDistrict, Honorable VictorH. Fall, Judge presiding. Counsel of Record: ForAppellant: Lloyd J. Skedd argued, Helena, Montana. ForRespondent: Harrison, Loendorf and Poston, Helena, Montana. Jerome T. Loendorf argued, Helena, Montana.

Submitted: September 25, 1972Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal is taken from the district court of the first judicialdistrict 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 RalphA. Swanson, the appellant. Hazel Haefner Swanson's petition was based upon her claim that she was the wife of GeorgeWilliam Swanson, the decedent. Ralph A. Swanson's petition was based upon the claim that Hazel Haefner Swansonwas not the wife of the decedent and asserted his right as survivingbrother to be appointed administrator. The district court found Hazel Haefner Swanson to be the wife of the decedent and granted her petition. Petitioner RalphA. Swanson appeals. Appellant, in his enumerated specifications of error to this Court, contests the pertinent findings of fact and conclusions of lawwhich bear on the singular legal question of whether

or not the relationship between Hazel Haefner Swanson and the decedentmeets the criteria of a valid marriage. GeorgeWilliam Swansondied intestate inHelena, Montana,

on July 18, 1971,being at the time of his death a resident of East Helena where he owned a dwelling house inwhich he and Hazel had lived since 1961. Except for thematter now in controversy, George Swansonhad never been married and had no children. George Swansonwas 62when he died and was survived by three sisters and by two brothers, one of which is the appellant,RalphA. Swanson. George Swanson and Hazel Haefner Swansonmet 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 Georgewanted her to divorce her husband. However, in the sameyear Hazel followed her husbandto 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 shewas divorced in January 1963. In June 1963,Hazel and George bought wedding rings and mutually declared theirmarriage. 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 friendshipswith 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 onAugust 2, 1971, followed by the submission of proposed findingsof fact and conclusions of law by the parties. Following the district court's order appointing Hazel Haefner Swanson the administratrix, the appellantRalph 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 therewas 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 lawmarriage 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: "Whatconstitutes 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 alonewill not constitutemarriage;-itmust be followed by a solemnization,

## 02 by mutual and public assumption of themarital 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 wouldhave 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 shemoved into George's house as his housekeeper, that they had separate bedrooms, and that the relationshipwas 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 outsetwas illicit, appellant argues that the respondent has the burden of proving that the relationshipwas made lawful by subsequent actions of Hazel and George as stated in Welch v. All Persons. 

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## * * If the relationshipwas illicit in the beginning the burden is upon the party asserting the validity of themarriage to show that the unlawful relationship changed to a lawful one.It Itwas on thispoint 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 showno 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 theparties. Inview 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 Georgewas given as follows:"Q. When were you and George Swansonmarried? A. In 1963, followingmy 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,

'Idon't knowhow you say this,but with this we aremarried.' And I said, 'Ithink 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, 'Wearemarried'? A. Yes." Following thatmutual expression, therewas 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 asMrs. 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 factVI, 1 VIII, IX and conclusionf of law I,which

are set out below: FINDINGS OF FACT VI. \' That the deceased, GeorgeW. Swanson,purchased wedding rings for the Petitioner,Hazel Swanson,and that they were married by verbal consent,and by amutual and public assumption of themarital 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 GeorgeW. Swanson on or aboutthe 18thday 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 Swansonwere known as

man and wife in East Helena,Montana, the community in which they lived. CONCLUSIONS OF LAW

That Hazel Swansonwas married to the deceased George W. Swansonby verbal consent and by amutual and public assumption of themarital relation in 1963. I/

As amatter of law it should be pointed out that common lawmarriages entered into validly are recognized. The appellantwould place the burden of proof on the respondent to prove the validity or lawfulness of her relationshipwith George Swanson. A more thorough statement of the law is contained in Welch v. All Persons,which gave proper recognitionbefore the law to common lawmarriages. 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, "Everypresumption will be indulged in favor of the legality of

a common-law marriage in the sameway an'dto the same extent as the law indulges them in favor of a ceremonialmarriage." 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 disputablepresumption regardingmarriage: "30. That aman and a woman deporting them-selves as husband and wife have entered into a lawful contract ofmarriage." Every intendment of the law is in favor of matrimony which presumesmorality and not immorality, marriage and not concubinage, legitimacy and not bastardy. Hadley

### v. Rash, 21 Mont. 170, 53 P. 312; Statev. Newrnan, 66Mont. 180, 213 P. 805. Contrary to appellant's position attacking the validity of themarriage of Hazel and George, absent evidence of an illicit relationship in R.C.M. 1947 1963, the disputablepresumption of section 93-1301-7,jfnustbe repelled by the party disputing it and thismay be done only by satisfactory evidence. Elliottv. IndustrialAccident Board, 101 Mont. 246, 53 P.2d 451. The district court has entered its findings of fact and conclusions of lawbased on the evidence before itwhich was also presented to this Court in this appeal. As stated in Bender v. 473, Bender, 144Mont. 470,/397 P.2d 957: "There isno dispute that in an equity case this court should review the evidence aswell as the law,however, its review is limited to the extent necessary to determinewhether there is substantial evidence to support the findings of fact made by the trial court and if such findingsare sufficient to support the conclusions of lawbased thereon. (Citingcases.)" We find sufficient evidence and accordingly the judgment of the district court is affirmed. 

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Associate Justice

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Mr. Chief Justice James T. Harrisondid not participate in this cause. -8-