In Re the Estate of White ( 1984 )

No. 84-164
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
1984
I N THE MATTER O THE ESTATE O
F F
IRENE M. WHITE, Deceased.
APPEAL FROM: D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G l a c i e r ,
The E o n o r a b l e R . D. M c P h i l l i p s , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
F r i s b e e , Moore, & S t u f f t ; David F. Stufft,
C u t Bank, Montana
F o r Respondent :
Werner, N e l s o n & E p s t e i n ; L a r r y D. Epstein,
Cut Bank, Montana
S u b m i t t e d on B r i e f s : J u l y 1 9 , 1984
Decided: Axgust 30, 1984
Filed:
AUl; tj d i384
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Irene White died intestate October 7, 1981. Virgil
White was appointed personal representative of her estate.
Joseph Rattler, Sr. , brother of Irene White, sought removal
of Virgil White as personal representative and his own
appointment in the Ninth Judicial District Court for Glacier
County. The District Court found that no common law marriage
existed between Virgil White and the decedent and appointed
Rattler as personal representative. Virgil White appeals.
We affirm.
The issue is: Was there a common law marriage between
Virgil White and Irene White at the time of her death?
Irene White died a resident of Glacier County, Montana,
with an estate consisting of trust property located on the
Blackfeet Indian Reservation, which is not the subject of
this probate, a mobile home located in Cut Bank and a savings
account at the First National Bank of Cut Bank.
In 1952 the decedent married Harry White, father of
Virgil White. Harry White and decedent remained husband and
wife until Harry White's death in 1967. Virgil White moved
in with Harry White and Irene White around 1966 and the three
of them lived together for approximately two years. It is
undisputed that after Harry White's death, Virgil White
continued to live with decedent until her death in 1981.
The evidence regarding the alleged common law marriage
of Virgil White and decedent is conflicting. A number of
witnesses testified in behalf of Virgil White to the effect
that Virgil White and Irene White had a reputation in the
community of being husband and wife and on occasion
represented themselves as husband and wife. These witnesses
included the long-time sheriff of Glacier County who
testified to their reputation as husband and wife in the
community.
On the other hand, the evidence submitted by Rattler,
decedent's brother, indicated that the decedent conducted her
banking transactions and maintained bank accounts exclusively
in her own name. Virgil White maintained bank accounts
exclusively in his own name. With one exception on various
applications for welfa-re assistance, Virgil White was listed
a.s a "stepson" or as a "boarder." The decedent received
Social Security benefits as an unmarried widow during the
period in question. On her frequent visits to the hospital,
the decedent listed herself as unmarried and referred to
Virgil White as a "stepson." Admission forms at the hospital
showing such 2 designation were signed by Virgil White.
The District Court in its findings of fact stated that
the decedent solely owned the mobile home she and Virgil
lived in; that decedent held a savings account in her own
name and conducted all banking transactions as an unmarried
woman in her own name; that Virgil White had a bank account
in his own name; that the decedent in her frequent visits to
Glacier County Memorial Hospital referred to Virgil White as
"stepson"; and that on all applications for welfare and
assistance, with one exception, decedent listed Virgil White
as "stepson" and as "boarder." The District Court also found
that on applications for insurance, Social Security and other
public assistance benefits, Virgil White listed himself as
unmarried or single. The District Court found that Virgil
White had assisted the decedent for many years around the
house and that Virgil and the decedent had engaged in sexual
intercourse. We note that the facts of this case are quite
comparable to a case recently decided by this Court, Estate
of Sartain (Mont. August 30, 1984), No. 84-15, P.2d
-I - St.Rep. , where we affirmed the District
Court's finding that there was no common law marriage.
Ultimately the District Court concluded that at the time
of her death the decedent was an unmarried woman residing
with her stepson and that her lawful heirs were her three
brothers. The District Court concluded that Virgil White had
failed to meet his burden in asserting a common law marriage.
In making that determination, the District Court emphasized
that to establish a common law marriage, Virgil White was
required to prove that the marriage took place immediately.
A common law marriage cannot be created piecemeal, but rather
comes instantly into being or does not come at all.
In our review of the District Court's findings of fact,
we apply the test set forth in Rule 52(a), M.R.Civ.P., which
provides that findings of fact shall not be set aside unless
clearly erroneous and requires that we give due regard to the
opportunity of the trial court to judge the credibility of
the witnesses. Sartain, supra. Having reviewed the record,
we find that there is substantial evidence to support the
District Court's findings of fact and that the findings of
fact are not clearly erroneous. As in Sartain, we emphasize
that it is essential that we give due regard to the
opportunity of the District Court to judge the relative
credibility of the witnesses. We apply the standard of
review set forth in Cameron v. Cameron (1978), 179 Mont. 219,
587 P.2d 939 and affirmed in Spraggins v. Elvidge (Mont.
1982), 647 P.2d. 859, 39 St.Rep. 1229.
There is no significant dispute between the parties as
to the rule of law which applies in Montana to common law
marriage relationships. The issue before us is whether the
trial court's finding that there was no common law marriage
should be set aside as clearly erroneous. Virgil White has
failed to show that the findings and conclusions of the court
were e r r o n e o u s . We affirm t h e D i s t r i c t