                                                No.    80-418

                    I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                       1981




I N THE PUTTER O F THE ESTATE OF
JACK LYLE PELTOMAA, D e c e a s e d .




A p p e a l from:      D i s t r i c t C o u r t of t h e Second 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 C o u n t y of S i l v e r B o w , T h e H o n o r a b l e
                       A r n o l d O l s e n , Judge p r e s i d i n g .


C o u n s e l of R e c o r d :


          For Appellant:


                       W.    D.   M u r r a y , J r . , B u t t e , Montana


          For R e s p o n d e n t :


                       N e i l J. L y n c h ,   Butte, Montana




                                                S u b m i t t e d on B r i e f s ;   A p r i l 22,   1981

                                                                    Decided :        f l H 1 7 18
                                                                                                99



Filed;     3UN 1 1 198ii
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
         This appeal arises from an order of the Silver Bow
County District Court, the Honorable Arnold Olsen presiding,
wherein the court dismissed appellant's petition for formal
intestacy proceedings, after finding that appellant was not
the common-law wife of the deceased, Jack Lyle Peltomaa, and
had no interest in his estate.
         Jack L. Peltomaa died intestate on June 11, 1979.
Decedent's brother, respondent herein, filed an application
for informal appointment of personal representative on
August    1, 1979.      On the same day, letters were          issued
appointing respondent personal representative.
         Upon learning of the application and            appointment,
appellant, Debbie Guardipee, on March 19, 1980, filed a
petition      for     formal     determination     of     intestacy,
determination of heirs, for supervised administration, and
appointment    of    personal    representative.    In    filing   the
petition for formal proceedings, appellant sought to have
her self determined to be the surviving common-law spouse
and, therefore, heir and to have herself appointed personal
representative under      a     supervised   administration of     the
estate.
         Respondent filed objections to the petition and
brought to the court's attention an agreement signed by both
appellant and respondent.        The agreement was dated June 15,
1979, and provided:
         'I.. .  in view of the renunciation by DEBBIE
         GARDIPEE [sic] [appellant] in the Estate of
         JACK1E LYLE PELTOMAA, the PELTOMAA FAMILY
         conveys to DEBBIE GARDIPEE [sic] all of the
         household and personal property that may be
         in the possession of the PELTOMAA FAMILY
         because of the death of JACKIE LYLE PELTOMAA.
      "The PELTOMAA FAMILY will pay for any
      outstanding debts that DEBBIE GARDIPEE [sic]
      may have at the present time."

      After a hearing, the District Court denied all of
appellant's    contentions concerning              her      status      as   the
surviving    common-law      spouse    and     dismissed          her   formal
petition,    granting     respondent   the     right     to      continue     an
informal     administration       of    the     estate           as   personal
representative.
       The main     issue before       this Court           is whether       the
District    Court   erred    in   failing     to     find     appellant       the
decedent's    common-law    wife.      In     this    regard,         appellant
alleges that the existence of a marital relationship between
her and the decedent is supported by the following evidence
and testimony presented to the District Court during the
hearing on the petition:
       (1) Appellant testified that she had lived with the
decedent from February 1976 until his death and that she
considered herself married           to him.         Appellant further
testified    that   the   decedent     represented          to    others     that
appellant was his wife; that the decedent's aunt introduced
her to some friends as Debbie Peltomaa; and that title to
her car was in both appellant's and the decedent's name (the
actual title was never produced at trial).
       (2) Respondent testified that various debts paid in
behalf of appellant, in accordance with the June 15, 1979,
agreement, represented monies owed by both appellant and the
decedent.      In particular, respondent testified that a
Household    Finance bill represented monies obtained by
appellant and the decedent to pay for the purchase of a
television and to pay for their moving expenses.                      Appellant
also     points         to    testimony       by     respondent          that       he    and   his

f a m i l y have p a i d a p p e l l a n t $1,000,           p a r t i a l l y o b t a i n e d from
t h e s e l l i n g of       the    trailer     d e c e d e n t was l i v i n g      in a t the

time of h i s d e a t h .          ( A p p e l l a n t a d m i t t e d , however, t h a t t i t l e
t o t h e t r a i l e r was i n d e c e d e n t ' s name,             although the rented
s p a c e was      in    both      their      names.         Respondent           contends      the
title      was     not       in    appellant's        name     or      in     the    decedent's

name. )
            ( 3 ) A p e r i o d i c s t a t e m e n t from M o u n t a i n B e l l F e d e r a l

Credit      Union was             submitted      i n d i c a t i n g p a y m e n t s made on a
l o a n g i v e n t o a p p e l l a n t u n d e r t h e name D e b b i e K . P e l t o m a a .
            ( 4 ) Appellant introduced a hospital b i l l dated April
24,    1 9 7 9 , which l i s t s a p p e l l a n t ' s       name a s Mrs.           Debbie K.

(Guardipee) Peltomaa                    and    which       indicates             t h a t Jack    L.

P e l t o m a a is h e r h u s b a n d .      Appellant contends the b i l l a l s o

shows      that      the      decedent        maintained          a     medical          insurance
p o l i c y on h e r a s h i s w i f e .         (Upon e x a m i n a t i o n o f t h e b i l l ,
h o w e v e r , we s h o u l d n o t e i t m e r e l y l i s t s J a c k P e l t o m a a a s t h e
"responsible party or                  n e x t of     kin"     and      states:          "doesn' t

know what         kind"       of    insurance        is a v a i l a b l e .       There     i s no
i n d i c a t i o n on t h e b i l l t h a t a p p e l l a n t was a c t u a l l y c o v e r e d
by a n i n s u r a n c e p o l i c y a s t h e d e c e d e n t ' s w i f e . )
            ( 5 ) Appellant also introduced a                         1978 f e d e r a l income

tax     return       filed         jointly      by     decedent         and      appellant       as

h u s b a n d and w i f e .
           Respondent             claims    that     in    light        of    all    the    above
evidence,          appellant          has     still       failed        to    establish         the
e x i s t e n c e of a common-law m a r r i a g e .
           I n support of h i s p o s i t i o n ,            respondent contends t h a t
h i s b r o t h e r n e v e r c o n s i d e r e d h i m s e l f m a r r i e d and was m e r e l y
living        with       appellant.              Respondent           further       argues       that

appellant only represented herself                             a s Mrs.       P e l t o m a a when i t

was t o h e r f i n a n c i a l b e n e f i t ( i . e . , i n b o r r o w i n g money o r i n

filing        a   joint        tax    return)        and    points       out     that     the    only

t e s t i m o n y used        i n support of           appellant's           position       a r e her

own s e l f - s e r v i n g     statements.            If    a p p e l l a n t had b e e n l i v i n g

w i t h t h e d e c e d e n t a s h u s b a n d and w i f e f o r o v e r t h r e e y e a r s ,

why was s h e u n a b l e t o p r o d u c e a n o t h e r w i t n e s s t o c o r r o b o r a t e

her allegations?

            Respondent           also      notes      testimony         to    the effect         that

a p p e l l a n t was n o t         l i v i n g w i t h t h e d e c e d e n t a t t h e time o f

h i s death;         that      a f t e r being       informed of             decedent's       death,

appellant         indicated           that their          r e l a t i o n s h i p was a l r e a d y a t

an     end;       that    appellant            did        nothing       about      the      funeral

arrangements             and     that      she     signed       the     June     15     agreement,

renouncing         any i n t e r e s t i n d e c e d e n t ' s e s t a t e w i t h t h e name

Debbie G u a r d i p e e , n o t Debbie Peltomaa.

           To e s t a b l i s h a common-law                m a r r i a g e i t h a s been h e l d

t h a t t h e proponent must prove:

            ". . .           t h a t t h e p a r t i e s were c a p a b l e of
           c o n s e n t i n g t o t h e m a r r i a g e and t h e r e was
           m u t u a l and p u b l i c a s s u m p t i o n o f t h e m a r i t a l
           relation.            The m a r r i a g e m u s t t a k e i m m e d i a t e l y
           and i t c a n n o t be c r e a t e d p i e c e m e a l .      I t comes
           i n s t a n t l y i n t o b e i n g , o r i t d o e s n o t come a t
           a l l ; and i t s p a r t i e s must e n t e r i n t o a c o u r s e
           of conduct t o e s t a b l i s h t h e i r r e p u t e a s hus-
           band and w i f e . "          I n Re M c C l e l l a n d ( 1 9 7 5 ) , 1 6 8
           Mont. 1 6 0 , 164-165, 5 4 1 P.2d 780, 783.

See a l s o Miller             v.     Townsend        Lumber      Co.     ( 1 9 6 8 ) , 152 Mont.

210,      448      P.2d       148;      Elliot       v.     Industrial          Accident        Board

( 1 9 3 6 ) , 1 0 1 Mont. 246, 53 P.2d 451.

            I n considering              the     t e s t i m o n y and e v i d e n c e p r e s e n t e d

i n t h i s m a t t e r , we n o t e t h a t t h e f a c t s u s e d t o s u p p o r t t h e

existence           of    a     common-law            marriage          are     mere      isolated
instances        i n which a p p e l l a n t         allegedly represented                        herself

a s decedent's wife.                   The     facts        fail         to    show any s p e c i f i c

agreement         between         appellant           and      the           decedent        concerning

marriage;          they      do        not     estabish             a        continuous           marital

r e l a t i o n s h i p and a r e i n c o n f l i c t w i t h t e s t i m o n y p r e s e n t e d by

respondent.

             T h i s Court       has    c o n s i s t e n t l y held           that    the       evidence

p r e s e n t e d a t t h e t r i a l c o u r t m u s t be viewed by u s i n a l i g h t

most     favorable          to     the       prevailing             party.             If        there     is

credible         evidence          consistent             with          the     findings           of     the

District        Court,       those       findings         will           not    be     disturbed           on

appeal.        See Olson v. Westfork P r o p e r t i e s , I n c .                          ( 1 9 7 6 ) , 171

Mont.     154,     557 P.2d        821;       C i t y of       M i s s o u l a v.      Rose        (1974),

164 Mont.        9 0 , 519 P.2d 1 4 6 .           I n s o reviewing t h e proceedings

of   t h e lower c o u r t h e r e ,          w e f i n d no e r r o r              in the District

Court's        conclusion         that        appellant          and          the    decedent           never

consummated,            either         formally           or        informally,              a    marital

relationship.

             Appellant       has       raised        a   second              issue    on     appeal        in

contending           that        the     District           Court             was     in    error         for

dismissing          her      petition           for       formal              proceedings.                 In

rejecting         appellant's            argument,             we       need        only     note        that

appellant's         alleged interest                 i n t h e e s t a t e of          t h e decedent

is based        s o l e l y on h e r         contention t h a t she is a surviving

spouse.          Having       already          determined                    that    appellant           and

decedent        never     consummated            a marital               relationship,             and     in

further       acknowledging             the    existence                of    appellant's           signed

renunciation           agreement,             this       Court          must        agree        with     the

D i s t r i c t C o u r t ' s c o n c l u s i o n t h a t a p p e l l a n t h a s no              interest

in     the     estate      and     find        that       the       petition           was       properly
dismissed.

          The    order       of   dismissal   as    entered   by   the   District

Court is a f f i r m e d .




                                                   Justice



We concur:
