dissenting.
I dissent; the appellee’s testimony at trial concerning her status as decedent’s common law spouse was properly admitted by the trial court under the devisavit vel non exception to the Dead Man’s Act, Act of July 9, 1976, P.L. *634586 No. 142, 42 Pa.C.S.A. § 5930. The majority’s holding to the contrary, that appellee “must first establish her status as a descendant before she can qualify to testify under the exception,” is inconsistent with the plain language of that statute and the prior decisions of this Court. McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935); In Re Estate of McClain, 481 Pa. 435, 392 A.2d 1371 (1978).
The Dead Man’s Act provides in part:
Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, ... and his right thereto or therein has passed, either by his own act or by the act of law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ... party, shall be a competent witness to any matter occurring before the death of said party ... unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.
42 Pa.C.S.A. § 5930.
“Devolution” is “the transfer of the decedent’s estate both by operation of law and by will.” In Re Estate of McClain, supra, 481 Pa. at 445, 392 A.2d at 1375. In the instant case, appellee claims a portion of decedent’s estate by operation of law (the right of a surviving spouse under the Probate, Estates and Fiduciaries Code to elect to receive a share of the estate against any will — 20 Pa. C.S.A. § 2508) while appellant claims decedent’s property by will. Clearly, therefore, this case presents a “controversy ... between parties respectively claiming such property by devolution on the death of such [property] owner____” Hence, “all persons [are] fully competent witnesses.”
*635Nevertheless, the majority ignores the clear and unambiguous language and application of the Act in the situation presented herein based upon its analysis of “two policies that we must examine [to determine] the desirability of allowing appellee to be excepted from the Act’s proscriptions.” The issue in this case — and in any case of statutory construction — is not our views as to the “desirability of allowing” a certain application of an Act, but rather, whether the legislature has required that application. It is a fundamental precept of statutory construction that, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1921(a).
The majority attempts to distinguish Estate of McClain, reasoning that “Appellee is sui generis from those situations covered under the exception, the reason being that in the instant case the testimony of the appellee does not go directly to questions surrounding the will or the decedent’s intent thereof, but rather is an attempt to establish the common law marriage.” At 357. In so reasoning, the majority reads Estate of McClain far too restrictively and resurrects the error that we corrected in that case. As we made clear therein, the devisavit vel non1 exception is “not limited to ‘issues as affect the beneficiary under an alleged will. ’ We have recognized the applicability of the exception to cases where all parties claim by intestacy,” as well as cases where some parties claim by will and other parties claim by operation of law. 481 Pa. at 443-45, 392 A.2d at 1374-75. It is of no legal significance that appellee’s testimony does not “go directly to questions surrounding the will or the decedent’s intent thereof,” for the appellee’s claim is predicated upon the operation of law, namely the Pennsylvania Probate, Estates and Fiduciaries Code which permits a spouse to elect to take a portion of a *636decedent’s estate against a will. 20 Pa.C.S.A. § 2508. Since the sole issue regarding appellee’s claim to decedent’s property by operation of law concerns her status as a common law wife, the majority requires her to prevail on the merits of her claim before allowing her to testify. This is in direct conflict with the reasoning and holding in Estate of McClain wherein appellants’ claim was premised solely on their status as descendants (grandnieces). This Court held that testimony by the descendants was admissible to demonstrate that status. If a grandniece may testify under the devisavit vel non exception regarding her status as grandniece, there is no perceptible basis, under the Dead Man’s Act, for refusing to allow a spouse, common law or otherwise, to testify regarding her status as spouse.2
The majority mistakenly relies upon Wagner’s Estate, 398 Pa. 536, 538, 159 A.2d 495, 498 (1960), to support the proposition that an alleged common law spouse may not testify about the contractual relationship between herself and the decedent in a proceeding for the spouse’s elective share. In Wagner’s Estate, the alleged common law spouse of the decedent did not testify and the issue of allowing her to testify was not raised. The statement in that case, “[T]he claimant’s lips are sealed by the Dead Man’s Act,” id., was obviously dicta and is not supported by a careful examination of the Act nor by precedent.3 In McGrath’s Estate, supra, the alleged common law spouse did, in fact, testify that the decedent had exchanged marital vows with her. This Court held that the spouse’s testimony alone was sufficient to establish the existence of a common law mar*637riage and, further, stated “nor is there any doubt of the competency of a surviving spouse to testify where, as here, the claim is to take by devolution.” McGrath’s Estate, supra 319 Pa. at 315, 179 A. at 602.
The appellant also challenges the sufficiency of the evidence to support the trial court’s finding that the appellee and decedent had entered into a common law marriage. While the evidence may not have been overwhelming, nevertheless there was sufficient evidence presented at trial to permit the lower court to find the existence of a marriage. A number of witnesses testified that the appellee and the decedent held themselves out to the community as husband and wife and that they were reputed to be husband and wife. It is also undisputed that the appellee and decedent had cohabitated for at least a portion of the time they were reputed to be married and that they had a child. Although, cohabitation and reputation are not a marriage, they are circumstances that raise a rebuttable presumption of marriage. Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346, 348 (1946). In addition, the appellee’s testimony that she and the decedent had entered into a marriage contract is sufficient, by itself, to sustain a finding by the lower court that a common law marriage had been formed. McGrath’s Estate, supra 319 Pa. at 315, 179 A.2d at 602.4
In conclusion, I believe that the testimony of the appellee was properly admitted at trial and that the evidence presented at trial was sufficient to support the trial court’s finding that the appellee was married to the decedent at the time of his death. I would, therefore, affirm the decision of the Superior Court.
HUTCHINSON and PAPADAKOS, JJ., join in this Dissenting Opinion.. Perhaps it would be more accurate to refer to the operative proviso of the Act in the instant case as the “devolution” exception rather than the devisavit vel non ("will or no will”) exception. However, the cases have generally used the devisavit vel non terminology for both situations.
. In the future, claims by spouses to a decedant’s property will be governed by section 2209 of the Probate, Estates and Fiduciaries Code, amended subsequent to the trial of this case. Act of February 18, 1982, P.L. 45, No. 26 § 1. The Act now provides that “A person who is or claims to be the surviving spouse should be a competent witness as to all matters pertinent to his rights under this chapter other than the creation of his status as surviving spouse."
. The majority has also extensively relied upon Estate of Gavula, 490 Pa. 535, 417 A.2d 168 (1980). In that case, however, this Court expressly declined to decide the issue of the applicability of the devisavit vel non exception in a case similar to the present one. Id., 490 Pa. at 539, 417 A.2d at 170.
. The appellee testified that the decedent asked: "Will you be my wife?” and that she replied: "I sure will.” This exchange could reasonably be construed as the offer and acceptance of a marriage contract per verba de praesenti. Such a contract creates a marriage. Pierce v. Pierce, supra. This Court has also ruled that a contract per verba de futuro followed by consumation creates a valid marriage. Richard v. Brehm, 73 Pa. 140, 144 (1873).