(dissenting).
The issue presented in this case is wheth-;r appellant was deceased’s common law wife.
Evidence submitted to support appellant’s contention that she is entitled to widow’s compensation may be summarized as follows: Appellant at all times herein pertinent was the widow of Murk Daugharty, deceased. In June, 1951, Foster, now deceased, moved into appellant’s home as a boarder, paid $25 a week for board and lodging, and continued to live in her home until the time of his death. His status as a paying guest continued until September, 1952, or later. In April, 1953, appellant and deceased motored from Clark Fork to Seattle and Port Townsend, Washington. En route they stopped over night at Ellens-burg and on the return trip at Moses Lake where, on April 13, 1953, they registered at a motel as Mr. and Mrs. L. Foster, Clark Fork, Idaho. Prior to the trip they had talked about getting married and on the trip the subject was discussed. Appellant testified: “We decided due to the fact that I am tied up in my husband’s property estate, we better wait.” and “We lived together as man and wife from April, 1953, until he was killed.”
While in Port Townsend they discussed the contemplated marriage with deceased’s daughter and son-in-law. Appellant testified : “We said we were going to be married and she (the daughter) said she was glad *34we had made up our minds and that we would have a home together.” Neither appellant nor deceased claimed at any of the places visited in Washington, or elsewhere, that they were married. After returning to Clark Fork from the sojourn to the coast: “He slept in my bedroom with me.” Further:
“ * * * he bought groceries. He maintained the house completely from the time we came back in April and he cut the wood. * * * He fixed the back porch and he did the gardening. He did everything a man of the family generally does * * * He made several improvements on the house * * *. He put in a new toilet in the bathroom and a roof on the north side of the house * *
In May, 1953, a son of claimant, David Daugharty, visited appellant’s home and found his mother and deceased occupying the same bedroom. The explanation of this questionable situation was that they were planning on getting married and were staying together. They did not then or thereafter claim to be married.
The following additional evidence was introduced to sustain appellant’s claim: Testimony of neighbors that they assumed appellant and Foster were married; a codicil to appellant’s will, dated June 19, 1953, signed Irene Daugharty Foster, by the terms of which she devised to her husband, Louis Foster, a life estate in her home; appointment of appellant administratrix of the estate of deceased by the probate judge of Bonner County; and, testimony of certain witnesses that they regarded them as husband and wife. No witness testified that the deceased Foster, in the community in which he lived, or other places, ever introduced or acknowledged appellant as his wife. In fact, the only time the subject was mentioned to deceased, he denied it.
In opposition to the claim, witnesses testified that on June 1, 1953, when deceased made out for the employer income tax Form W-4, Employer’s Withholding Exemption Certificate, he filled it out as a single man and did not claim to be married, and thereafter a bookkeeper for the employer, Mrs. Harwood, testified that in July, 1953, Foster told her he could claim no other dependent as he was not married. She testified: “I said: ‘You only have one dependent listed on your W-2. It would make quite a difference if you could list more than yourself.’ He said: ‘Well, I can’t, I am not married.’ ” Appellant was not listed as a dependent on the employer’s withholding tax records. The information given to the undertaker regarding Foster’s relatives did not list appellant as the surviving widow.
Neighbors who testified to a husband and wife relationship between appellant and deceased simply assumed the fact.
The Board found that cohabitation with a plan to be married in the future was insufficient to constitute a common law marriage, and ruled that there was no mutual consent to such marriage; and that the *35statement of appellant that the parties were going to get married or were planning to get married was insufficient to prove a marriage in praesenti.
Section 32-201 I.C. reads:
“Marriage is a personal relation arising out of a civil contract, 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, or by a mutual assumption of marital rights, duties or obligations.”
Before there can be a common law marriage both elements required by the statute must be shown to exist. First, a mutual consent of the parties; second, such consent must be followed by a solemnization or a mutual assumption of marital rights, duties and obligations. If either element is lacking, there is no marriage.
The Board in its determination of the matter specifically found that there was no mutual present consent to marriage and therefore appellant was not the widow of the deceased. Nowhere in the record is it established that Foster or appellant ever consented to the alleged marriage.
The making of the codicil to the will was not shown to ever have been brought to the attention of the deceased or that he consented thereto, and after the codicil was prepared and signed he stated positively to the bookkeeper of the employer that he was not married.
Were we to conclude that the evidence to support the claim of the marriage is in conflict, nonetheless there is sufficient competent evidence to support the findings of the Board, and where such findings are supported by substantial evidence, they are controlling on appeal and will not here be disturbed. Art. 5, § 9, Idaho Constitution; Stralovich v. Sunshine Mining Co., 68 Idaho 524, 201 P.2d 106. In the latter case, this Court held :
“Where there is any competent and substantial evidence to support findings of Industrial Accident Board, findings will not be disturbed by the Supreme Court.”
Viewing the evidence in the light most favorable to appellant, it discloses that the parties had talked about and planned on getting married some time in the future. In the meantime they were cohabiting together. Circumstances of habit or repute do not establish a marriage.
The fact that they registered as man and wife while at Moses Lake, Washington, wholly fails to disclose more than a convenient arrangement for spending the night.
The appointment of appellant as adminis-tratrix of the estate of the deceased is of no importance. It was a matter occurring after the deceased’s death in which he had no part, and so far as the records show it was entirely an ex parte proceeding, her appointment not being contested.
An agreement to cohabit for the present and to marry later is not a marriage al*36though there is cohabitation. There can he no contract per yerba de praesenti where the marital status is to become fixed in the future. 35 Am.Jur. 209, Sec. 41.
The order of the Board should be affirmed.
ANDERSON, J., concurs in this dissent.