Opinion
276 A.D. 822 93 N.Y.S.2d 354 Application of DURKIN. Supreme Court of New York, Fourth Department November 16, 1949
Proceeding in the matter of the application of Betty Durkin for determination of her right under section 18 of the Decedent Estate Law to elect to take an intestate share against the provisions of the last will and testament of Blake O. Wells, deceased.
The Surrogate's Court, Wyoming County, Barber B. Conable, S., rendered a decree for the petitioner, and the residuary legatee appealed.
The Appellate Division, memorandum by the court, reversed the decree and held that petitioner failed to sustain the burden of producing clear, consistent and convincing evidence of the existence of a common law marriage with deceased.
Harry M. Brown, Warsaw, for Maude Small, Residuary Legatee, appellant.
Thomas J. DeLaney, Jr., Buffalo, for Betty Durkin, petitioner-respondent.
Before TAYLOR, P. J., and McCURN, VAUGHAN, KIMBALL, and PIPER, JJ.
PER CURIAM.
Decree reversed on the facts and proceeding dismissed without costs of this appeal to any party. Certain finding of fact disapproved and reversed. In order to establish the existence of a common law marriage, it is essential to show that there was an agreement between the parties to live together as husband and wife. The burden of proving the marriage is upon the one seeking to establish it. If acknowledgment of marriage and cohabitation are established as facts, a presumption of marriage is raised but such facts are only evidence. In this case, if there was an agreement and consent to marry per verba de praesenti, such agreement and consent must necessarily be presumed from facts duly established, for there is no direct evidence of such agreement. There is evidence that these parties were friendly and intimate over a period of years and that on occasions, there was acknowledgment of marriage. The record, however, is barren of evidence which would prove a bona fide matrimonial cohabitation and cohabitation other than matrimonial is insufficient to raise a presumption that the relationship was that of husband and wife. But even if a prima facie presumption of a common law marriage could be made out of the respondent's evidence, such presumption has been abundantly overcome by the evidence of the appellant. See Matter of Heitman's Estate, 154 Misc. 838, 279 N.Y.S. 108,affirmed 247 A.D. 855, 288 N.Y.S. 876,affirmed 272 N.Y. 533, 4 N.E.2D 435; Matter of Pratt's Estate, 233 App.Div. 200, 251 N.Y.S. 424,appeal dismissed 258 N.Y. 577, 180 N.E. 340; Graham v. Graham, 211 A.D. 580, 207 N.Y.S. 195. Where one party is dead, the validity of any alleged common law marriage is open to suspicion.‘ Clear, consistent, and convincing evidence is required to establish the fact.’ Boyd v. Boyd, 252 N.Y. 422, 428, 169 N.E. 632, 634. The respondent has failed to sustain the burden of producing such evidence.
All concur.