In Re Estate of Mazlo

211 Kan. 217 (1973)

505 P.2d 762

In the Matter of the Estate of Nick M. Mazlo, Deceased. JOHN MAZLO, Appellant, v. HENRIETTA MAZLO, Appellee.

No. 46,845

Supreme Court of Kansas.

Opinion filed January 20, 1973.

John O. Kent and Conrad Miller, both of Kansas City, were on the brief for the appellant.

Blake A. Williamson and D. Gary Hunter, both of Kansas City, were on the brief for the appellee.

MEMORANDUM OPINION

MARRIAGE Common-law Marriage Established.

Per Curiam:

This case presents for determination rival claims to the estate of Nick M. Mazlo, deceased.

Appellee Henrietta Comstock Mazlo's claims as sole heir to the estate of Nick M. Mazlo was predicated on her right as the common-law wife of Nick. Appellant John M. Mazlo contested Henrietta's claim and asserted his right to the estate as a nephew of the deceased. The matter was tried to the district court without a jury. From a judgment in favor of Henrietta, John has appealed.

The principal question on appeal is whether or not the trial court erred in concluding from the evidence submitted that a common-law marriage existed between Nick and Henrietta.

Appellant asserts three grounds for reversal: (1) the judgment is contrary to the evidence, (2) the facts are so unique that justice requires a finding that no common-law marriage existed and (3) public policy in Kansas demands a change in the law regarding common-law marriages.

Appellant's first two points of error may be treated by answering a single question: Was the evidence sufficient to sustain the trial court's judgment?

Kansas has long recognized the validity of common-law marriage. The basic elements essential in the creation of a common-law marriage are the capacity of the parties to marry, a present marriage agreement, and a holding out of each other as husband and wife to the public. For a few of our recent cases applying these rules, and citing many of our former decisions, see Gillaspie v. Blair Construction Co., 192 Kan. 455, 458, 388 P.2d 647; Sullivan v. Sullivan, 196 *218 Kan. 705, 413 P.2d 988, and Schrader v. Schrader, 207 Kan. 349, 484 P.2d 1007.

The evidence at the trial was conflicting but the trial court resolved the conflict in favor of the appellee Henrietta. We hold that the court's findings were supported by substantial competent evidence, that the trial court properly applied the rules in the aforementioned cases, that a common-law marriage existed under the laws of the state of Kansas between Henrietta and Nick, and that Henrietta is the widow of Nick M. Mazlo, deceased.

Appellant's third assignment of error in effect urges this court to reverse its former decisions upholding common-law marriages. The rule upholding common-law marriages has been approved and applied by this court for over 85 years and has been solidified by recent cases. (Gillaspie v. Blair Construction Co., supra; Sullivan v. Sullivan, supra; and Schrader v. Schrader, supra.) We adhere to our former opinions.

The judgment is affirmed.