dissenting.
This appeal concerns a construction of Tex.Fam.Code Ann. §§ 1.91(a)(2) and 1.91(b) (Vernon 1975) and the sufficiency of the evidence necessary to prove a common-law marriage under those sections. I would hold that the evidence is legally sufficient to support findings that Claveria and Carolina “lived together in this state as husband and wife and they represented to others that they were married.” Since the evidence supports a finding on these two elements, an agreement to be married may properly be inferred under § 1.91(b). Consequently, I would affirm the probate judge’s order finding a prior common-law marriage and barring appellant from contesting the decedent’s will. Accordingly, I must dissent.
The two issues presented by this appeal are the sufficiency of the evidence of a holding out, i. e. that Claveria and Carolina represented to others that they were married, and the sufficiency of the evidence of cohabitation, i. e. that they lived together as man and wife. I agree with the majority’s holding that the proof of these elements of a common-law marriage must support the inference that the couple intended their relationship to be permanent rather than indefinite or for a fixed period. With this principle in mind, I review the evidence of the “holding out” and “cohabitation” elements.
It is undisputed that Claveria and Carolina purchased a house and executed a deed of trust to the mortgagee as husband and wife. This occurred at the time they commenced living together, according to Clave-ria. The majority holds that this evidence is legally insufficient to prove that they held themselves out to others as man and wife. This holding seems to have two bases: First, that these representations were insufficient because of the audience to which they were made, and second, that the number of representations was insufficient. The majority points to the absence of testimony by community members as to a holding out by Claveria or Carolina that they were man and wife. I do not read § 1.91 as requiring that testimony by any particular group of persons is necessary to support a finding of a common-law marriage. Indeed, where the relationship was short and several years have passed, testimony from community members may be difficult to obtain. Admittedly the audience may be important under some circumstances. For instance, if a couple checked into a motel, purporting to be husband and wife, I would be inclined to hold that such a representation would not support a finding of a common-law marriage. The inference that the couple was engaged in an illicit relationship would be just as probable based upon such a representation, as the inference that they were engaged in a permanent relationship. But where, as here, the representation was made to a government entity and filed of public record, I see no logical basis for holding the representation legally insufficient based upon the audience to which it was made. The warranty deed and deed of trust were matters of public record, subject to inspection by members of the public at any time. Hence, they constituted a continuing representation to all members of the community and readily support an inference of permanence of the relationship. I cannot agree that the “holding out” element was not proved merely because there is no testimony from neighbor or community members that Claveria and Carolina held themselves out as husband and wife.
*441Neither can I agree with the second basis of the majority’s holding that a specific number of representations is necessary to support a finding of a common-law marriage. The majority holds that because the warranty deed and deed of trust were part of one transaction, they are an isolated representation and thus legally insufficient to prove a “holding out.” As authority for this proposition, the majority quotes an excerpt from Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960) which quotes Drummond v. Benson, 133 S.W.2d 154 (Tex.Civ.App. — San Antonio 1933, writ ref’d). Both cases are distinguishable on their facts.
In Drummond the court held that isolated references to a person as being his or her husband or wife constituted no evidence of a common-law marriage. The court in that case was concerned with isolated references over a period of years, all made outside the presence of the other spouse to the purported marriage. That situation is clearly distinguishable from a joint execution of public documents as husband and wife.
In Ex parte Threet there was evidence of only one introduction of the defendant as plaintiff’s husband. The remaining representations by plaintiff that defendant was her husband were made outside his presence. However, in Ex parte Threet, the couple never shared a common residence. The plaintiff was a fifteen year old girl who occasionally had sexual relations with defendant at her parent’s home over a period of four months. The couple never spent an entire night together. Clearly there was no evidence that the couple lived together as man and wife. The plaintiff in that case relied upon the representations to establish both the “holding out” and the “cohabitation” elements. The holding of Ex parte Threet was that these representations were insufficient to establish both elements of a common-law marriage. Thus Ex parte Threet is not authority for the proposition that multiple instances of a holding out as husband and wife is required before the evidence is legally sufficient to prove a common-law marriage. I cannot agree that accepting a warranty deed and executing a deed of trust on a residence for the couple is “no evidence” of a holding out as a husband and wife because it is part of a single transaction.
With respect to whether it was proven that Claveria and Carolina lived together as husband and wife, I reiterate my agreement with the general rule set forth in the majority opinion that the evidence of the character of the couple’s cohabitation must support the inference that the couple intended their relationship to be permanent. However, I cannot agree that the joint purchase of a house in which the couple resides is “no evidence” that their relationship was intended to be permanent. The majority holds that: “Any inference based upon the purchase of this property that they intended to be married to each other at any specific time is mere speculation. . Reasonable minds could equally draw the conclusion that the property was bought strictly for resale and that they intended to divide the proceeds and go their respective ways, which is exactly what they did.” I respectfully submit that the majority has reached an erroneous holding under an issue not presented in the case at bar. Their holding is that the joint purchase of property is no evidence of intent to be married. Under Tex.Fam.Code Ann. § 1.91(b) (Vernon 1975), appellant was not required to present evidence of an intent to be married. By holding that appellee’s evidence was insufficient to prove an intent to be married, the majority has ignored the inference provided for by that section.
Under § 1.91(b) appellee was only required to prove a holding out as husband and wife, as previously discussed, and that Claveria and Carolina lived together as man and wife. It is not disputed that the couple lived together for at least several months; the question is whether they lived together as man and wife. I agree with the majority that in order to prove a couple lived together as man and wife there must be evidence of the character of the couple’s cohabitation supporting the inference that the relationship was permanent rather than temporary or indefinite. The evidence in *442the instant case shows that Claveria and Carolina jointly purchased the house, and that each signed a deed of trust as husband and wife. They also commenced living together at this same time. This evidence logically supports the inference that Clave-ria and Carolina intended their relationship to be permanent rather than temporary. The purchase of property by a husband and wife imposes Texas community property law upon the transaction. Thus, it is not equally logical to infer that such a purchase is made for investment purposes, as the majority suggests since investors would not sign the deed as husband and wife. Rather the evidence of the joint purchase of the house, as husband and wife makes the inference more probable than not, that Clave-ria and Carolina intended a permanent relationship. Thus I would hold that it is legally sufficient evidence that Claveria and Carolina lived together “as man and wife.”
As I understand the majority opinion, they alternatively support their judgment by holding that where an inference of an agreement to be married is relied upon to prove a prior marriage, proof of a subsequent marriage conclusively rebuts the existence of the prior marriage under Tex. Fam.Code Ann. § 2.01 (Vernon 1975). I cannot agree that § 2.01 mandates such a result. In support of its holding, the majority cites Rosetta v. Rosetta, 525 S.W.2d 255 (Tex.Civ.App.—Tyler 1975, no writ), which is not supportive of the majority’s position. The Rosetta holding was based on the factual insufficiency of the evidence. In Rosetta, the appellant’s assertion that there was no evidence to support the finding of a common-law marriage was specifically overruled. Id. at 260. Neither does the language of § 2.01 support the majority’s holding. The majority has imposed a hierarchy on § 2.01 that places ceremonial marriage on a higher level than a common-law marriage. I find no basis under Texas law for such a hierarchy, and the majority has cited no authority for that proposition. Regardless of my personal views as to the preferability of ceremonial marriages over less formal relationships, any such changes in the law should be left to the legislature.
Under the majority’s holding a woman claiming to be a common-law wife could live with a man forty years, bear his children and stand by him through good times and bad. Then when the man left her to ceremonially marry a younger woman and died shortly thereafter, the woman who had devoted her entire life to him would, in all probability, be barred from proving that she was his wife. In almost all cases of this type, the only direct evidence of an agreement to be married would be testimony by the purported common-law widow as to her conversations with the decedent. Since that testimony would be barred by the dead man statute, her only recourse would be the inference of an agreement to be married permitted by § 1.91(b). The majority would hold that the presumption of validity of the later ceremonial marriage under § 2.01 forecloses applicability of the § 1.91(b) inference. I cannot agree that in enacting § 2.01, the legislature mandated such a result.
Because I find the evidence legally sufficient to support findings that Claveria and Carolina held themselves out as being married and lived together as man and wife, I would affirm the judgment finding a common-law marriage between Claveria and Carolina and barring. Claveria from his will contest against appellee.