This suit was instituted by Mary Berger against James Smith, *Page 614 individually and as administrator of the estate of A. Berger, deceased, and against M.D. Kirby, individually and as administratrix of the estate of M.W. Kirby, deceased, and against a number of other persons not necessary to mention, as the case depends upon the right of plaintiff as surviving wife of A. Berger to the property of said estate. A. Berger was a widower, — unless Mary Berger was his wife, — and died in Dallas, Texas, leaving as his heirs a brother and some other relatives whose names are unimportant. Decedent left a considerable estate and owed some debts. There was a contest over the granting of letters of administration, Mary Berger claiming to be the surviving wife of deceased but waived her right to administer, and letters were granted to James A. Smith.
To decide the issues of law upon which the case as before this court depends does not require a full statement of the facts, but only those facts upon which plaintiff rests her claim to have been the wife of A. Berger; for if there was material error in the charge of the court upon that question, or if there was error in excluding testimony offered to prove the marriage, the judgment should be reversed, otherwise it must be affirmed.
Mary Berger claimed that she had been servant to A. Berger and after his wife's death he and plaintiff made an oral contract to be husband and wife, and that they lived together as husband and wife to the death of A. Berger.
Upon the trial plaintiff being upon the witness stand offered to testify, in substance, "that four days after the death of A. Berger's first wife, she and A. Berger agreed to live together as man and wife, agreed to be man and wife, just as he and his former wife, Josie Ramarez Berger, had been, and thenceforth they were husband and wife until the day of the death of A. Berger."
The objection made is not stated in the application, but the court excluded the evidence. There was much evidence on the various issues, but it is unnecessary to recite it here. The judge charged the jury as follows: "A common law marriage is valid in this State, and the issuance of a marriage license or marriage ceremony is not necessary to constitute a common law marriage. A common law marriage exists when a man and woman enter into an agreement to become husband and wife and in pursuance of such agreement do live together and cohabit as husband and wife and hold each other out to the public as husband and wife. Such agreement to become husband and wife may be express or implied; an express agreement is where the parties thereto expressly agree, and an implied agreement is where the parties with reference to the subject matter is such as to induce the belief in the minds of the contracting parties that they intend to do that which their acts indicate they have done. If you believe from a preponderance of the evidence that the plaintiff, Mary Berger, and the deceased, A. Berger, agreed to become husband and wife, as is claimed by the plaintiff, and that in pursuance of such agreement they lived together and cohabited as husband and wife, you (will) find that the plaintiff was the wife of A. Berger, deceased. If you fail to find under the preceding clause that the plaintiff was the common law wife of A. Berger, deceased, *Page 615 then you are instructed that you need proceed no further, but you will return your verdict for the defendants."
The jury returned a verdict for the defendants.
Plaintiff's right to recover in this case depends primarily upon the truth of her claim to have been the wife of the deceased Berger. The best phase of the evidence for the plaintiff is that her marriage to the deceased was a question of fact to be decided by the jury, and to be entitled to a reversal of the judgment, she must show material error in the charge of the court to the jury, or such error in admitting or excluding evidence upon that issue. The charge of the court gave a correct rule to govern the jury in deciding the issue of marriage. (See Stallcup v. Grigsby [Grigsby v. Reib] opinion filed at the same time as this.) The jury returned a verdict for defendants, that is, that Mary Berger was not the wife of Berger.
We now look for error which probably produced an erroneous conclusion upon the facts. We repeat that the evidence was not conclusive of the marriage, and the verdict must stand unless error be shown in admitting or excluding evidence.
The character of cohabitation between plaintiff in error and deceased was material and the evidence which tended to show the character of the community in which she lived and her own character for virtue were relevant to interpret the visits of Berger and his association with the woman, and there was no error in admitting evidence of these facts.
There was no error in refusing to permit plaintiff to testify that "about four days after the death of Berger's wife, she married Berger"; it was a conclusion. She did not claim to have been married under license. The proposed statement if admitted would not have tended to prove a common law marriage. The witness was not competent to prove the transaction between herself and the deceased in making a contract of marriage. Rev. Stat., 1911, art. 3690; Edelstein v. Brown, 100 Tex. 403.
The deeds made by Mary Berger as the surviving wife of the deceased were manifestly sought and made to prevent litigation — buying the peace of the adverse claimants. The recital that she was the surviving wife of Berger constitutes no estoppel under such state of facts. 16 Cyc. p. 687-8; Cannon v. Stockman, 95 Am. Dec., 206, 36 Cal. 535.
The charge of the court on the subject of common law marriage was practically correct. (Stallcup v. Grigsby [Grigsby v. Reib, anti p.] opinion filed today.)
There is no error shown that requires a reversal of the judgments, which we affirm.
Affirmed. *Page 616