Dissent
Myers, J.I cannot agree with the result of the majority opinion or the premise upon which it is based. It makes a mountain out of a molehill in disapproving *244that part of the Appellate Court’s opinion concerning the competency of the alleged widow to testify as to a “ceremony” between herself and the decedent.
The basis for this action was the establishment of a common-law marriage. The majority opinion states that it is “the very purpose of the appellee as widow in this proceeding, to gain a widow’s share in the estate.” However, she could not acquire any share in the estate until she proved that she was the widow. She presented no claim or demand against the estate in the sense that she was attempting to deplete it or deprive it of some property, real, personal, or both, which would not be distributed to heirs under the laws of descent. The main purpose of the lawsuit was to prove a common-law marriage which would entitle her automatically to a widow’s share in the estate. Therefore, §§2-1715 and 2-1716, Burns’ Ind. Stat., 1946 Replacement, do not in any way apply to this situation. To do so, the court has placed itself in the peculiar position of determining the very issue which was raised by appellee, Bonnie B. Sutherland, by saying that the statute was abused because of her testimony. Admission must be made that she was the widow of the deceased.
In deciding that there was a common-law marriage, the general relationship between the parties, their actions and conduct, both in private and in public, are far more important in establishing whether a true common-law marriage existed than any words they may have said between themselves about creating a contract or any “ceremony” they may have had. This was carefully pointed out by the Appellate Court. It said (at page 783 of 195 N. E. 2d): *245Whatever appellee claims decedent and she said or did as to an agreement is practically meaningless to establish a common-law marriage. It is the surrounding circumstances and evidence of general relationship which is important, and apparently the record was so replete with such evidence that there was no question of a valid marriage relationship being established without the need of appellee’s statement concerning a “ceremony.”
*244“No formal words are necessary, and whether such contract has been entered into by and between the parties is a question for the trier of the facts. Walters v. Stockberger (1898), 20 Ind. App. 277,282, 50 N.E. 763.”
*245Even if such evidence was improperly admitted, it was not prejudicial for the reason that appellee could have been, and was, declared to be the widow of the deceased in the absence of such testimony. Thus, as the Appellate Court points out, the error, if it existed, was harmless. See Bowers, Admr. v. Starbuck (1917), 186 Ind. 309, 313, 116 N. E. 301.
To send this matter back to the trial court would needlessly prolong the administration of this estate and possibly give rise to further litigation unnecessarily.
The petition to transfer should have been denied without comment.
Jackson, J., concurs in result.
Note. — Reported in 204 N. E. 2d 520.