Opinion
Opinion Withdrawn and Rehearing Granted Jan. 16, 1953.
C. G. Lee, of Ames, and T. J. Mahoney and Robert E. Mahoney, of Boone, for appellants.
Doran, Doran, Dorans&sErbe, of Boone, for appellee.
WENNERSTRUM, Justice.
This appeal has developed by reason of the appointment of Alice M. Stopps as administratrix of the estate of Georage Stopps, deceased, by the clerk of the district court of Boone county. A petition to set aside this appointment was filed by the heirs of George Stopps wherein it was asserted that Alice M. Stopps had previously been married to George Stopps but a decree of divorce had been granted to him on August 10, 1940. It is the claim of Alice M. Stopps that she was the wife of George Stopps at the time of his death and on the trial and hearing relative to setting aside her appointment as administratrix there was testimony presented that on July 6, 1944 Alice M. Stopps and George Stopps entered into a common-law marriage. The trial court held that the parties had entered into such a marriage, that it was valid, and that Alice M. Stopps was the widow of George Stopps and had the right to make application for the appointment of someone to administer the estate within the first twenty days following the funeral. Sections 633.39, 633.40, 1946, 1950 Code, I.C.A. The court dismissed the petitioners' application to set aside the appointment. They have appealed.
George Stopps was approximately 74 years of age at the time of his death. Alice M. Stopps at the time of the hearing in July, 1951 was 72 years of age. The petitioners in the district court and the appellants herein are half sisters and half brothers of George Stopps. Alice M. Stopps had been married and divorced five times. The last marriage, other than the claimed common-law marriage to which reference will be hereinafter made, was to George Stopps which was solemnized on July 6, 1939.
Both the decedent, George Stopps, and Alice M. Stopps had engaged in the business of buying and selling residence properties in Boone, Iowa, and from the record it would appear that this continued during the time that these parties lived together as husband and wife. Subsequent to their divorce and prior to the time of their claimed marriage the properties purchased by the decedent and Alice M. Stopps were sold by each of them as single persons.
The evidence discloses that on July 6, 1944 these parties went to Jefferson, Iowa for the purpose of obtaining a marriage license and being married. Upon making inquiry at the county clerk's office in that city they were advised that before they could secure a license they would have to take a blood test examination. This requirement did not meet with their approval and they then returned to Boone, Iowa and went to the office of an attorney who had done legal work for several years past for the decedent. At the time of the trial this attorney was deceased. However, the claimed widow testified that the attorney advised her and the decedent that they could enter into a common-law marriage. It is further shown that the decedent purchased a diamond ring for Alice M. Stopps which was given to her on that day and which ring was in evidence during the trial of this case, and it is further shown that they then returned to the home which the decedent owned in Boone, Iowa and where he had previously lived.
The evidence presented before the trial court was quite extensive and there were numerous exhibits offered. It is shown that the Sunday following July 6, 1944 the decedent and Alice M. Stopps drove to Newton where they visited the son and daughter by a prior marriage of Alice M. Stopps; that while there the decedent, George Stopps, referred to the ring he had given to Alice M. Stopps and said, 'See the ring I bought my wife.' It is further shown that from and after July 6, 1944 George Stopps and Alice M. Stopps lived together in Boone, Iowa, that the home where they originally lived following July 6, 1944 was later sold and that in this deed there was no reference to the fact that George and Alice M. Stopps were husband and wife. However, this deed did not contain a release of dower. In connection with the clearing of the title to this property at a later date George Stopps, the decedent, gave an affidavit which is as follows:
'State of Iowa, Boone County, SS.
'I, George W. Stopps, being first duly sworn, on oath depose and state that at one time I was the owner of Lot 6 in Block 9 in Blair's Second Addition to Boone, Iowa, and that on August 11, 1944, when I sold said property to Anna Subbert, Alice M. Stopps, who signed the deed with me, was my wife, and is my wife on this date.'
'Signed 'George W. Stopps.'
'Subscribed and sworn to before me this 23rd day of July, 1949.
'Signed: 'Reinhold Josephson,' Notary Public.'
We shall not make separate reference to the several real estate conveyances which were executed by George and Alice Stopps subsquent to July 6, 1944. In three of the deeds covering the conveyances to property owned by one or the other of them, the grantors were not designated as husband and wife but in two of the deeds the proper person was named as releasing dower. In the other 24 deeds George and Alice Stopps were noted as husband and wife. There is also testimony of various real estate brokers that they were known as husband and wife and this is further shown by the testimony of neighbors, friends and relatives. Some of these witnesses testified that the general reputation of the marital status of George and Alice Stopps in Boone for the five years preceding the decedent's death was that they were husband and wife. It is also shown that they filed income tax returns as husband and wife, made several trips where they visited with friends and relatives and on these occasions they evidenced a status that they were living together as husband and wife.
It is maintained by the petitioners herein that Alice M. Stopps, the claimed wife, should be removed as administratrix because she is not the surviving spouse of the decedent. It is their contention that they have pleaded and proved the divorce of the claimed widow and that she has the burden of proving by competent evidence that she is the surviving spouse of the decedent and they maintain that she has failed to do so. It is their particular contention that the statutes of Iowa forbid a common-law marriage without a marriage license and that such a marriage is not recognized by the statutes and is unlawful and against public policy. I. Chapter 595, 1946, 1950 Code, I.C.A., contains statutes relative to marriage and the issuance of a necessary license. Chapter 596, 1946, 1950 Code, I.C.A., includes sections relative to the necessity of a physical examination as a prerequisite for a marriage license. The contention of the petitioners is that because of the fact there was no marriage license issued to the parties here involved even a common-law marriage was not possible. This contention cannot be sustained. Section 595.11, 1946, 1950 Code, I.C.A., anticipates nonstatutory solemnization of marriages and is as follows:
'Nonstatutory solemnization--forfeiture. Marriages solemnized, with the consent of parties, in any other manner than as herein prescribed, are valid; but the parties thereto, and all persons aiding or abetting them, shall forfeit to the school fund the sum of fifty dollars each; but this shall not apply to the person conducting the marriage ceremony, if within fifteen days thereafter he makes the required return to the clerk of the district court.'
It is true as set out in the statute previously quoted that a penalty could be imposed for a violation of any of the provisions relative to a marriage solemnized in any other manner than as provided by statute. However, it will be observed that such a marriage, when entered into with the consent of the parties, is valid. This statutory enactment unquestionably answers the contention of the petitioners. It should be kept in mind that Section 595.19, 1946, 1950 Code, I.C.A., enumerates the circumstances under which there shall be a void marriage. In this section no reference is made to the invalidity of what has been generally termed a common-law marriage.
It is conceded in appellant's reply brief that the evidence was sufficient to authorize the trial court to find George Stopps and Alice M. Stopps had entered into a common-law marriage, if such marriage was allowable at the time Alice M. Stopps claims it was entered into. Petitioners, however, urgently maintain that the statutory provisions relative to the necessity of a license prohibits even a common-law marriage. We cannot approve of this contention in the light of the statutory references previously made.
II. By reason of the concession made and our conclusions heretofore announced relative to the statutes previously referred to, we see no necessity of making an analysis of our several previous cases pertaining to common-law marriages. However, a brief reference to some of these cases seems advisable.
Common-law marriages in Iowa have been previously recognized. Boehm v. Rohlfs, 224 Iowa 226, 231, 276 N.W. 105; Love v. Love, 185 Iowa 930, 931-932, 171 N.W. 257. In the case of In re Estate of Wittick, 164 Iowa 485, 145 N.W. 913, the facts and circumstances are somewhat similar to those in the instant case. In the last cited case there was evidence that the claimed wife entered into business transactions along with her claimed husband, as in the present case, and joined as his wife in the conveyance of real property. There were other similar points of evidence. This court held that there was sufficient evidence to hold that a common-law marriage had been entered into. Another case where the evidence was held sufficient is that of McFarland v. McFarland, 51 Iowa 565, 2 N.W. 269. See also Worthington v. Worthington, 238 Iowa 1044, 29 N.W.2d 186; Estate of Clark, 228 Iowa 75, 105-106, 290 N.W. 13. Cases where the evidence was held insufficient to warrant a holding that a common-law marriage had been entered into are: Bradley v. Bradley, 230 Iowa 407, 297 N.W. 856; Reppert v. Reppert, 214 Iowa 17, 241 N.W. 487; Hoese v. Hoese, 205 Iowa 313, 217 N.W. 860; Estate of Medford, 197 Iowa 76, 196 N.W. 728; Hess v. Hess, 191 Iowa 52, 181 N.W. 760; Pegg v. Pegg, 138 Iowa 572, 115 N.W. 1027.
On account of our conclusions previously stated, we affirm.
Affirmed.
All Justices concur.