testimony, as he had a right to do, for he saw and observed the witness. These expressions, in effect, constituted a mutual agreement in words of the present tense to be husband and wife. Obviously, no set formula is required for this purpose, so long as the exchange of words inescapably and unambiguously implies that an agreement was being entered into to become man and wife as of the time of the mutual consent.
Virginia, however, does not recognize common-law marriages. Offield v. Davis, 100 Va. 250, 263, 40 S.E. 910. Consequently the agreement to become husband and wife was not effective, when made, since the Virginia law created an impediment to the creation of such a marriage relation. In 1946 the couple moved to Washington, where they continued living together for about ten years. The District of Columbia recognizes common-law marriages. Consequently, the impediment to the inception of the marriage was removed and since the relation continued pursuant to the agreement entered into previously, a common-law marriage was created as soon as the couple moved to the District of Columbia and continued living there.
This precise situation was presented in Travers v. Reinhardt, 205 U.S. 423, 436-440, 27 S. Ct. 563, 51 L. Ed. 865. In that case the couple proposed to enter into a common-law marriage in Virginia. As the State of Virginia did not recognize such marriages, this contractual relation was not valid. Later the couple moved to Maryland, which likewise did not recognize common-law marriages. Subsequently, they took up residence in New Jersey, where they continued their cohabitation as husband and wife. New Jersey recognizes common-law marriages. The Supreme Court held that when the couple came into a State which sanctioned it, a valid common-law marriage came into being.
The testimony of the claimant on this issue was corroborated by other witnesses tending to show that the deceased held the claimant out as his wife by introducing her as such on various occasions; by taking out insurance policies in which he named her as his spouse; and by joining with her in executing a promissory note and a chattel mortgage. The policies, the note, and the chattel mortgage were introduced in evidence. Moreover, there was evidence on the part of a landlady, who appeared to be entirely disinterested, that mail was received by the claimant in which she was addressed as Mrs. Evelyn Morton.
Counsel for the plaintiffs stressed the fact that from 1956 until Morton's death in 1958, the parties lived apart, he in a room close to his work, and she and her two children with her mother in Maryland. The fact that a married couple separates obviously does not affect the validity of the prior marriage and, consequently, this circumstance appears irrelevant. Moreover, there was testimony showing that the parties lived in this manner for the last two years of Morton's life for economic reasons; that they met each other once or twice a week and spent the night together; and that the deceased regularly sent money to the claimant.
There is, however, an unsavory aspect to the claimant's testimony. If her testimony was true, she had made false statements of a serious and grave nature in the course of her life in respect to the matters in issue, and even obtained public assistance from Maryland authorities by an outrageous falsehood. She explained these misstatements, however, to the satisfaction of the Deputy Commissioner. Whether the Court would have been satisfied with the explanation is manifestly immaterial. The credibility of the witness and the weight of the evidence was for the Deputy Commissioner to determine and he resolved them in her favor.
The situation presented here radically differs from that confronted in United States Fidelity & Guaranty Co. v. Britton, supra, which has been previously discussed. In the last-mentioned case, the alleged wife had expressly rejected the idea of marrying the man with whom she was living, pointing to the fact that she was already married to another. After this impediment was removed by the death of her husband, no agreement was made by her with her paramour to become husband and wife. In the case at bar, the cohabitation was accompanied by an express agreement to be husband and wife in praesenti.
In the light of the foregoing considerations, the awards must be sustained.
The plaintiffs' motion for summary judgment is denied, and the defendant's motion for summary judgment is granted.