                                 No. 12938

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




I N TIIE MATTER O THE ESTATE OF
                 F
JAMES M. McCLELLAND, Deceased.




Appeal from:    D i s t r i c t Court o f t h e Tenth J u d i c i a l D i s t r i c t ,
                Honorable R. D. M c P h i l l i p s , Judge p r e s i d i n g .

Counsel o f Record:

     For Appellant :

           John L. Adams a r g u e d , B i l l i n g s , Montana

     F o r Respondent :

           Donald E. Ronish argued, Lewistown, Montana
           Leonard H. McKinney argued, Lewistown, Montana



                                             Submitted:         September 23, 1975

                                                Decided: OCT201975
Filed:   ?fT2018a
Mr. Justice Wesley Castles delivered the Opinion of the Court.
          This is an appeal from a district court judgment finding
that the appellant, Genie Driver, was not the common law wife of
the deceased, James M. McClelland, and therefore, had no interest
in his estate.
          James M. McClelland died on October 3, 1972, and his
mother filed a petition for letters of administration and was,
on October 25, 1 9 7 2 , appointed as administratrix of deceased's
estate.    On about February 1, 1973, appellant, who designates
herself as Genie    river McClelland, filed a petition to determine
heirship and for letters of administration, requesting that the
previous lettelsissued to deceased's mother, be revoked.
          Prior to his death, deceased was deeded an undivided one-
fourth interest in real property in Fergus County, Montana.       When
he was 20 years old, he was married to Barbara Hanley McClelland
and from this marriage, James Jonathan McClelland was born.       This
marriage ended in divorce in June, 1970, and James Jonathan Mc-
Clelland is a respondent in this action.
          In February   ,   1971, deceased and appellant met and they
have lived together off and on until his death, a total of 19
months.   Appellant claims that there existed a common law marriage
between herself and deceased.       She claims, therefore, that under
section 91-1401, R.C.M.      1947, she has a priority to nominate an
administrator, and the district court must appoint that person as
an administrator.
          At the hearing there was extensive evidence presented by
both sides as to the existence or nonexistence of the common law
marriage between appellant and deceased.       The court, after review-
ing the evidence, found in its conclusion of law:
          "Here, there is evidence of an initial illicit
          relationship between the decedent and Genie
          Driver, and the latter has, as a matter of law,
        failed to sustain the burden that the unlawful
        relationship changed to a lawful one."
        The district court further assessed court costs against
appellant.   Appellant then petitioned the district court to allow
her to appeal in forma pauperis.   The district court allowed
appellant to file without costs, but would not allow her a tran-
script at public expense.   From that judgment and later refusal
to provide appellant with a transcript at the State's expense,
appellant appeals.
        The main issue before this Court is whether a cornman law
marriage existed between appellant and deceased.
        In support of the marriage, appellant introduced an affi-
davit signed by appellant and deceased declaring that there existed
between them a common law marriage, and which was presented to the
Oregon Welfare Department in order to obtain assistance.
       According to appellant's testimony, Robert LaRoche, an
attorney for Legal Services in Poplar determined that deceased and
appellant had a valid common law marriage when they came to him
concerning a possible charge against them of illegal cohabitation.
        James A. McCann, county attorney, Roosevelt County, testi-
fied that he talked with deceased several times and each time
deceased referred to appellant as his wife; that appellant and
deceased came to his office to seek some advice about possible
charges of illegal cohabitation being filed against them and
McCann testified that he inquired of each of them    whether or
not they were married, and stated that each of them answered in
the affirmative.   He further stated that he went through the re-
quirements of a common law marriage to ascertain for himself
whether or not they are indeed married by common law.    He testified
that he thought that they were married.
       Appellant alleged that the undisputed testimony was that
appellant and deceased lived as man and wife in the home of appellant's
mother in Fraser, Montana, in September, 1971.
        Appellant also testified that Mr. Mauer, a social worker
from Yellowstone County, who was in charge of appellant's case
file, was told by appellant that they were married.
        Appellant's probation officer, Joe Bock, testified that
appellant advised him of her marriage to deceased and she even
brought deceased to meet the probation officer.
        When deceased was in the hospital appellant was allowed
all the visiting privileges of a wife, and the doctors who com-
mitted deceased to Warm Springs State Hospital, placed on his
certificate as to his marital status, "Married (Common law
          .
marriage) "
        When appellant went to Warms Springs State Hospital to
visit the deceased, she signed the motel register as "Mrs. James
M. McClelland ."
        Warm Springs State Hospital records showed deceased to be
married and listed appellant as his wife.
        Steven Day once lived with appellant and deceased, and
he testified that deceased introduced appellant to Steve as "his
old lady" which Steve interpreted as meaning his wife.
        Appellant asserts that all of the above testimony estab-
lishes a common law marriage between herself and deceased.
        Respondents, however, claim that in light of all the above
evidence, there is still no common law marriage established by
appellant.    Respondents argue that the only time deceased and
appellant alleged that they were married was when it would be of
benefit to them; in Oregon when they needed welfare; to the wel-
fare people in Billings when she needed aid to dependent children;
to the hospital when they wanted to visit; and to appellant's
parole officer, so appellant would not get in trouble for living
with deceased.
        Respondents further point out that appellant testified
the marriage took place "approximately around the 28th of March."
But that is in conflict with the initial petition filed which
indicated that the marriage arose in September, 1971, and the
affidavit presented by appellant indicated the same.
        Deceased's prison record when he started his two year's
probation on June 2, 1971, reflected his marital status as divorced.
The conveyances of life estate executed by deceased on September
22, 1971, reflected a single status.   His mother was the benefi-
ciary on his life insurance and his mother made all the funeral
arrangements.   In answer to questiorsby Tess Peck and Opal Rung,
at deceased's grandmother's funeral on about May 15, 1971, de-
ceased stated they were roommates and not married.   On September
22, 1971, deceased told Opal Rung that he and appellant were going
to get married and later on that occasion, appellant discussed
such contemplated marriage with Opal while they were in the car
outside the bank.
        Deceased's letter to his mother dated March 22, 1972,
indicated he needed money to marry appellant.   Appellant was ad-
mitted to the hospital in Oregon under her maiden name, and was
then processed through the criminal court in Oregon in June, 1972,
under that name.
        Appellant indicated that they intended to go through a
marriage ceremony but never got around to it.
        It is respondents' claim that the above facts disprove
a common law marriage existed.
        In order to establish a common law marriage the proponent
must prove that the parties were capable of consenting to the
marriage and there was a mutual and public assumption of the
marital relation.   The marriage must take place immediately and
it cannot be created piecemeal.   It comes instantly into being,
or it does not come at all; and its parties must enter upon a
course of conduct to establish their repute as husband and wife.
See:   Miller v. Townsend Lbr. Co., 152 Mont. 210, 448 P.2d 148.
           As we can see from the above summary of testimony, the
facts establishing the common law marriage of appellant and
deceased are conflicting.     This Court has consistently held
that where there is a conflict in the evidence, the findings of

the trial court are presumed to be correct if supported by
evidence most favorable to the prevailing party.     See: City of
Missoula v. Rose, 164 Mont. 90,     519 P.2d 146, 31 St.Rep. 191.
           We find that the findings of the district court are
supported by credible evidence.
           Appellant brings three additional issues for review.
The first is whether or not the court can assess appellant's
costs in its judgment.    This Court finds that section 91-4314,
R.C.M. 1947, allows the district court in its discretion to
assess costs in its judgment.
           The next issue is whether the court properly denied
appellant's request for a transcript at the county's expense.
Rule 18, M.R.App.Civ.P.   provides that an application can be made
to the district court to appeal without paying fees and costs.
The rule further states that the court shall state the reason
for any denial.    The reasons for denial in this case are not
apparent from the file.
           Subsection (b) of that Rule, however, provides that if
the motion for leave to proceed on appeal in forma pauperis is
denied by the district court, a motion for leave to proceed may
be filed in this Court within 30 days after the entry of the order
of denial.    Appellant has not complied with this requirement of
the law.    Therefore, this Court will not entertain an objection
by appellant as to the district court's denial of allowing her
a transcript without costs.

        Finally appellant asserts that the judgment exceeds

the issues involved at the trial of this matter.         We find no

merit to that argument.
        The judgment of the district court is affirmed.


                              .................................
                                            Justice

We concur:



  Chief Justice




  Justices
