                             No. 12158

      I N THE SUPREME COURT OF THE STATE O M N A A
                                          F OTN

                                 1972



I N THE MATTER O THE ESTATE O
                F            F
GEORGE WILLIAM SWANSON, Deceased.




Appeal from:   District Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
               Honorable V i c t o r H. F a l l , Judge p r e s i d i n g .

Counsel o f Record:

    For Appellant :

         Lloyd J. Skedd a r g u e d , Helena, Montana.

    F o r Respondent:

         H a r r i s o n , Loendorf and Poston, Helena, Montana.
         Jerome T. Loendorf a r g u e d , 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%.ofadministration 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 adminis-
trator.     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 conclu-
sions 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 ob-
tained 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 house-
keeper 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 con-
sisting 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 pro-
ceeded 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 appoint-
ing 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 in-
cluding 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 relation-
ship was changed to a lawful one was never met by the respondent.
Appellant argues that there was never a common, uniform, and un-
divided repute of marriage in the community based upon the evi-
dence produced at the hearing including documents and testimony,
and thus George and Hazel's relationship remained illicit.   Ap-
pellant strongly urges that the continued use of the name Hazel
Haefner throughout the alleged common law marriage was persua-
sive 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 con-
         tract, 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 assert-
           ing 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 conclu-
sions of law of the district court, and in pertinent point find-
ings 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 wed-
ding 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 assump-
                                        I/
tion of the marital relation in 1963.
        As a matter of law it should be pointed out that common
law marriages entered into validly are recognized.         The appel-
lant 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 presump-
tion 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 con-
        clusions 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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