Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
The only question raised and argued on this appeal is the correctness of the trial court's finding and adjudication that plaintiff was not the commonlaw wife of decedent George F. Wiggins, who died intestate in Jersey City on October 18, 1955. Plaintiff had sought a declaratory judgment establishing the validity of an alleged common-law marriage with Wiggins so that she, as his widow, would inherit a dwelling house standing in his name, to the exclusion of defendants, his surviving heirs. She also sought a declaration that she was joint owner of the house and that defendants held it in trust for her sole benefit or, in the alternative, that she was entitled to an equitable lien thereon, by reason of fraud perpetrated upon her when decedent acquired title in his own name. The court ruled that she failed to prove fraud, and that ruling is not challenged.
Plaintiff and decedent were residents of Jersey City for more than 20 years preceding his death. They lived together at 428 Jackson Avenue from 1941 until 1946, when decedent purchased the house in question, occupied by the two of them until his death. The court found as a fact that she and decedent lived together as man and wife from 1941, and that finding is well established by the testimony of plaintiff's own witnesses. There can certainly be no question that they posed as husband and wife after 1944, the year of the alleged common-law marriage.
The evidence establishes that decedent married one Alma Crosby in 1918. She died as Mrs. Alma Oakley in 1947. There is no proof that the marriage was ever dissolved;
in fact, decedent's brother testified there was never a divorce. In 1928 decedent married a Sarah C. Amaker, who was then married to one James Amaker. The Amaker marriage was never dissolved; indeed, Amaker was still living in Philadelphia at the time Sarah died in 1952. Plaintiff herself testified that at the time of the alleged common-law marriage decedent told her about the Amaker woman. Notwithstanding this knowledge she entered into the informal marital bond. Although she knew that Mrs. Amaker died in 1952, she never requested decedent to enter into a ceremonial marriage.
Direct proof of the alleged common-law marriage comes from the mouth of plaintiff alone. She testified that sometime in July 1944 she and decedent discussed matrimony. He suggested they go South because Sarah Amaker, "this woman he was supposed to be married to, * * * had given him a lot of trouble and he was afraid she would give him more trouble." Consequently, and apparently with a most casual disregard for any possible impediment to decedent's marrying anyone, they planned a ceremonial marriage at the home of decedent's relatives in the South. This informal and unconventional view of community mores and the law itself seems to have characterized the entire course of their relationship, from 1941 on.
Plaintiff's account of the common-law marriage was that while waiting for train connections in Atlanta, Georgia, decedent said he had been thinking the matter over; that if there were a ceremonial marriage it would get into the newspapers and Sarah Amaker would learn of it, and he said "What do you say if you and I just be man and wife?" She said "I will," and then "Will you be my husband," to which he answered "I will." (We remark upon the unexpected precision of this verbal exchange, which so accurately meets the legal requirement of our cases of a marital undertaking per verba de praesenti.) They then visited decedent's brother in Columbus, Georgia, went on to visit his mother in Dawson, Georgia, and then proceeded to still another brother in Jacksonville, Florida. They again exchanged
marital vows there before visiting the brother. While plaintiff testified that decedent introduced her to his relatives in the South as his wife, they testified to the contrary.
The parties remained in the South no more than two weeks and then returned to Jersey City where they held a reception for friends and relatives and decedent introduced plaintiff as his wife. Although plaintiff thereafter claimed that status, she used her former name of Alice Winn to vote and in connection with gas, electric and telephone services. When decedent died she provided the information which appears on his death certificate, where he is described as "Widower."
We take particular note, as did the trial court, that in her complaint filed February 14, 1956 plaintiff initially alleged that she and decedent had "lived together as man and wife although unmarried to each other." This was repeated in her first amended complaint filed shortly thereafter. In the second amended complaint, filed July 15, 1956, these allegations were deleted and in lieu thereof plaintiff alleged that she and decedent had contracted a common-law marriage in the States of Georgia and Florida in July 1944.
The two essentials of a common-law marriage are capacity in the parties and their mutual consent presently to become man and wife. Simmons v. Simmons , 35 N.J. Super. 575, 579 (App. Div. 1955). By reason of N.J.S.A. 37:1-10, which declares void any common-law marriage contracted after December 1, 1939, the parties must also show that the common-law marriage was recognized under ...