
    SCHWINGLE v. KEIFER et al.
    (Supreme Court of Texas.
    Feb. 26, 1913.)
    1. Marriage (§ 20) — 'Common-Law Marriage-Essentials.
    An instruction that an unqualified agreement between man and woman to become then and from thenceforth husband and wife, constituted a valid marriage, did not correctly define a common-law marriage.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 12-14; Dec. Dig. § 20.]
    2. Appeal and Error (§ 1094) — Intermediate Appeai>-Fact Finding.
    The Supreme Court must accept the facts as found by the Court of Appeals, and also its construction of the evidence, if it be fairly susceptible of two constructions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094.]
    3. Witnesses (§ 57) — Disqualification— Testimony by Wipe.
    One claiming a part of a decedent’s estate, on the ground that she was decedent’s common-law wife, was incompetent to testify on the question..
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 157-159; Dee. Dig. § 57.]
    4. Marriage (§■ 20) — Marriage by Agreement.
    An agreement between man and woman that they would live together so long as they desired, but either could dissolve the marriage at any time, did not constitute a lawful marriage by agreement. -
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 12-14; Dec. Dig. § 20.]
    5. Appeal and Error (§ 1029) — Harmless Error.
    Where the evidence, considered in any, aspect, did not authorize plaintiff to recover, any error in rulings at trial was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4035, 4036; Dec. Dig. § 1029.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Veneranda Schwingle against C. C. Keifer and others. Judgment of the Court of Civil Appeals (135 S. W. 194), affirming a, judgment for defendants, and plaintiff brings error.
    Affirmed.
    Morris & Giilett, of El Paso, for plaintiff in error. Brown & Terry and Robt. T. Neill, all of El Paso, for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig, & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

Jacob Schwingle, a German, without wife or children, unless plaintiff in error was such wife, resided in El Paso, Tex., in that portion occupied principally by Mexicans. He made a will which was duly probated; C. C. Keifer being nominated executor, who qualified as provided by law. The controversy in this case does not involve the proceedings in the probate court, nor the validity of the will, except as hereinafter stated. The plaintiff in error brought this action to recover one-half of the property which constituted Schwingle’s estate, as being community property between herself, as wife of Jacob Schwingle. For the purpose of this opinion, we will state only the substance of plaintiff’s evidence in proof of her being the wife of Schwingle. We give the substance of the facts, as found by the Court of Civil Appeals.

Veneranda Moreno was a Mexican woman, living in ' the city of El Paso. She was not acquainted with Schwingle; but he came to her room in the city of El Paso, and proposed to her that they should be husband and wife. He did not propose marriage by any judge or other official, just- that she should live with him as his wife; and it was agreed that they would live together so long as they desired, but either could dissolve the marriage at any time. They lived together for 10 years, when she left him, but returned again, and they were husband and wife to his death. The defendants in error disputed the marriage and claimed that the woman was Schwingle’s housekeeper. The Court of Civil Appeals found that there was no such agreement as would constitute a common-law marriage.

The trial court submitted but one issue to the jury — the question of marriage without license — and gave this charge: “You are instructed that a man and woman, competent to marry under the law of this state, may, if they see proper to do so, instead of being married in accordance with the forms prescribed by our statutes, enter into an unqualified agreement, the one with the other, to become then and from that time thenceforth husband and wife, and same would be a valid marriage contract. Said agreement may be express or implied. An express agreement is where the parties thereto express their agreement in words; an implied agreement is one where the conduct of the parties with reference to each other and' the subject-matter is such as to induce the belief that they mutually intend to do that which their acts indicate that they have done. A living and cohabiting together as husband and wife, or declarations of the parties that they are husband and wife, do not of themselves constitute a marriage in fact, in the absence of an agreement, express or implied. An agreement, either express or implied, coupled with a proviso or qualification, made at the time of entering into a marriage contract, that either or both of the parties to the contract could dissolve the contract at will would not in law constitute a marriage contract. In order to render such a marriage contract invalid, it must appear, from the evidence, that the proviso or qualification entered into and formed a part of the marriage contract at the time the contract was made; any after agreement, or any such construction of the marriage contract by either or both of said parties, would not render a marriage contract, otherwise valid, void. The qualification to render it void must be a part of the marriage contract itself, and not a construction of it. Any mental reservation, on the part of either of said parties, and not expressed to the other at the time a marriage contract is' made, that the party did not in good faith intend to take the other into the full marriage relationship would not have the effect to avoid a marriage contract otherwise valid. You will look to all of the evidence, facts, and circumstances introduced in evidence in determining whether a valid marriage contract, such as defined in this paragraph of this charge, was made between applicant and said Jacob Schwingle. * * * Therefore, if you shall find for the applicant on the issue as to marriage, yoiir verdict may be as follows: ‘ * * * We, the jury, find for the applicant on the issue as to marriage.’ * * * If the jury shall find for the respondents, they will return a general verdict saying: ‘We the jury find for the respondents.’ ” The jury returned a verdict for respondents, in the language given by the court.

The plaintiff in error claimed to have become the wife of Jacob Schwingle under a definite oral contract, and her case must stand or fall on that proposition.

Except that it is not correct as to what might constitute a common-law marriage (see Grigsby v. Reib, 153 S. W. 1124, decided this day), the charge of the district judge is clear and explicit in its expression, and correct. No complaint is made of the charge.

This court must accept the facts, as found by the Court of Civil Appeals, and the construction of the evidence, if it be fairly susceptible of two constructions. The charge of the court submitted but'one issue; that was whether there was a common-law marriage by agreement between the parties, omitting the requirement of cohabitation. The jury returned a verdict for the respondents; and judgment was entered accordingly.

The plaintiff in error was permitted to testify, over objection, although she was incompetent. Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816. The charge of the court was more favorable to her than the law justified.

-I-Ier own statement of the agreement between her and Schwingle showed that it did not in law constitute marriage. If it were the law that they could have created a marriage by contract only, it must have been an absolute agreement to be husband and wife during their lives. She proved that no such agreement was made; therefore there was no marriage. She could not have recovered if there had been no evidence but her statement.

Having no evidence on which she could recover, the other assignments become immaterial, and will not be examined.

It is ordered that the judgments of the district court and the Court of Civil Appeals be, and they are hereby, affirmed.  