This is a suit seeking the partition of certain lands situated in the Township of Berlin, Camden County, New Jersey.
The plaintiffs, Rita Jordan and Vincent Pontani, are the children of the late Samuel Pontani, who died intestate on November 3, 1948. Charles W. Jordan is the husband of Rita Jordan.
The premises here in question were conveyed to Samuel Pontani and Adelaide Pontani, husband and wife, by deed dated April 1, 1943.
The sole question involved is whether Adelaide (Mohan) Pontani was the wife of Samuel Pontani on the date of the above referred to deed.
The defendant contends that she and Samuel Pontani entered into a common-law marriage on June 30, 1940. Common-law marriages are valid in Pennsylvania, where this marriage was allegedly contracted. It is admitted that both
Adelaide Mohan and Samuel Pontani were residents of Pennsylvania on June 30, 1940. If a valid marriage was undertaken in the state of the parties' residence, the conveyance succeeded in vesting an estate by the entirety in them. If there was no such valid marriage, then the estate of Samuel and Adelaide was a tenancy in common and the plaintiffs must succeed in this suit. Hubatka v. Meyerhofer , 79 N.J.L. 264 (Sup. Ct. 1910), reversed on other grounds, 81 N.J.L. 410 (E. & A. 1910); Mastbaum v. Mastbaum , 126 N.J. Eq. 366 (Ch. 1939).
In Pierce v. Pierce , 49 A.2d 346 (Pa. Sup. 1946), the court said at page 348:
"Where a common law marriage is asserted, any presumption which might otherwise be indulged in, becomes immaterial when the one asserting the validity of the relationship relies upon a putative contract which is legally insufficient to establish the fact of marriage. See McDevitt's Estate , 280 Pa. 50, 52, 124 A. 294, 295; In re Bisbing's Estate , 266 Pa. 529, 531, 109 A. 670, 671. In re Murdock's Estate , 92 Pa. Super. Ct. 275, 277, the court said: '* * * if she herself proves that no valid marriage contract was actually entered into between them, evidence as to cohabitation and reputation goes for nothing * * *.'"
See also Commonwealth v. Stump , 53 Pa. 132 (Pa. Sup. 1866); Richard v. Brehm , 73 Pa. 140 (Pa. Sup. 1873).
The words required to create a common-law marriage must be used in praesenti and not in futuro. Pierce v. Pierce, supra; Baker v. Mitchell , 17 A.2d 738; (Pa. Sup. Ct. 1941); In re Murdock's Estate , 92 Pa. Sup. Ct. 275 (1928).
Before considering the testimony relating to cohabitation and reputation, the evidence of the contract itself must be assayed. The sole testimony came from the lips of the defendant. She testified that on June 30, 1940, she and Samuel Pontani were married in her apartment at 1311 Erie Street, Philadelphia, Pennsylvania. She ...