BRANSON, Y. C. J.
This proceeding is to reverse a judgment of the district court of Craig county, rendered on thej 1st day of March, 1924, as supplemented on the 21st day of April thereafter. The judgment of the district court was rendered in th^ exercise of its jurisdiction on appeals from matters probate from the county court of said county. When filed in this court, the appellants were Alejx Mudd and Maude Lee Mudd. Since this appeal was filed, Maude Lee Múdd has secured an order from this court dismissing the appeal as to herself, and as thq' matter now stands, the appeal is prosecuted by Alex Mudd. The cause had its origin in the county court of said county by the said Alex Mudd and Maude Lee Mudd seeking a distribution of the estate of on^ Lucy Lotson Perry, deceased.
Under the provisions of sections 1354 to 1358, Comp. Stats. 1921, the said Alex Mudd and Maude Lee Mudd pleaded that the said Lucy Lotson Perry died May
ZZ.
1922; tlwt more than 4 months had elapsed since the issuance of letters of administration; that the decedent left no descendant surviving her; that she left no, husband, and that the said Alex Mudd was her brother, and the said Maude Lee Mudd was the daughter of a deceased brother of the said decedent; and prayed:
“Wherefore, your petitioners pray that this petition be set down for hearing; that notice of the same be given as provided in section 1355, of the Comp. Stats. 1921, and that upon the hearing of said petition, that the court order the distribution of said estate, leaving only such funds in the hands of the administrator as may be necessary to finish paying the debts and the cost of the! administration.”
Notice was given as provided in said section 1355, and one Samuel A. Perry, who is styled herein as the appellee, under section 1356, came into the same proceeding, denied their allegation that decedent left no husband, and made application for a distribution to himself, under said section 1354, of one-half of the estate of thej said Lucy Lotson Perry, as the surviving husband of the said decedent, and that the remaining half be distributed equally between Alex Mudd and Maude Lee Mudd.
On hearing these applications, after the notice was duly given, as provided by law, a judgment of distribution was entered by the county court, from which an appeal was taken to the district court, and on trial in the district court, the judgment from which this appeal is perfected was-entered. That judgment was in effect: ‘‘That at the time of her (decedent’s) death, she was the lawful wife of Samuel A. Perry, who survived her. . That Alex Mudd, a brother, and’ Maudej Lee Mudd, a child of a deceased brother, also survived her.” .And further, that • the said husband took one-half of the property ordered distributed and that Maude Lee Mudd took one-fourth, and that Alex Mudd took onej-fourth. The judgment was conditioned, however, by the requirements set out in section 1357, Comp. Stats. 1921. The judgment was supplemented thereafter in substance requiring the county court, from which the cause was appealed, to carry the finding and judgment of the district court into effect.
Many assignments of error are made on behalf of the remaining appellant, but those which warrant discussion resolve themselves into few. • One is that the district court had no power to enter the order of distribution in favor of Samuel A. Perry. Appellant’s argument in support of this contention is centered around the case of In re Coyne’s Estate, 103 Okla. 279, 229 Pac. 630. and is to the effect that under the sections of the statute, supra, authorizing the proceeding instituted in the county court of Craig county, a decree of heirship cannot be entered, for that a decree of heirship is exclusively authorized by sections 1359 and 1384 to 1388, Comp. Stats. 1921, inclusive.
On reading the syllabus in said case without analyzing it in connection with the facts as disclosed in the 'body of the opinion, the position of counsel could not be said to be taken without reason. In the Coyne Estate, however, the facts were such as not to justify the interpretation placed thereon which appellant seeks to give it, in support of his position. The decadent, Coyne, in that easp did not die without issue surviving; hut. on the .contrary, left surviving him a daughter, whose whereabouts for a number of years had been unknown. This daughter. Mary Ellen, would havq' been the sole surviving heir, but not having been he°rd fr m for years, a brother, Thomas J. Coyne, acquired a decree of distribution to h’mself heir, undertaking to pursue said ‘p-t’-n 1359 “on final distribution of estates,” but. as held by the court in said case, it was treated by the county court as being a subst^nti"' compliance with the provisions governing pardal distribution (sections 1354 to 1357. inclusive, Comp. Stats. 1921).
The law announced in the syllabus in thp
Coyne Case can toe held to go only to the point that the daughter could not be excluded toy the proceedings there, and the inheritance taken by her father’s brother and paid, as administrator, to himself couldi not be retained by him, she having established her status as h,is daughter. It cannot be extended to the ¡point of holding that under the partial distribution statutes, supra, the person who petitions for a partial distribution as an heir, that any dispute as to his relationship to the decedent or the amount of the estate he is entitled to receive, which may be raised by some other person, cannot heard and tried by the court. The judgment entered on such hearing is conclusive as against all- the parties before the court, but it does not operate as a decree of heirship in the sense that it excludes all other persons foreign to the proceedings for partial distribution who may afterwards come in and desire to be heard,
under
sections 1359 or 1384 to 1388, inclusive, Oomp. Stats. 1921. But in the instant case, the petition for distribution toy the appellee is on the ground that he was the lawful husband of the deceased. ‘Under the statute, since it is admitted that decedent left surviving no descendants, he would receive as an heir one-half of her property, the remaining half to go m as many divisions as might on a determination of heir-ship hq adjudged there were separate and distinct heirs. How many collaterals there might be to take the other half would not in any wise affect the husband’s right to one-lialf of the property, if in fact he was the lawful husband. Apparently it was conceded by the appellant here, through counsel, in the district court that the issue of whether he was the lawful husband of the deceased was, an issue properly triable there. For in the opening statement of counsel for the appellant here, it was stated, among other things :
“It is simply a case to determine whether or not Sam Perry is also entitled to share as an heir, and that right we deny, because there never w'as a valid marital relation existing.”
It was not contended in the district court that the right to enter the order for Samuel Perry’s part under the partial distribution statutes did not exist, if the court, on trying the facts which the brother and the niece of the deceased disputed, found that Samuel A. Perry was the lawful husband of the intestates. If the partial distribution sections (1354 to 1358, Comp. Stats.
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BRANSON, Y. C. J.
This proceeding is to reverse a judgment of the district court of Craig county, rendered on thej 1st day of March, 1924, as supplemented on the 21st day of April thereafter. The judgment of the district court was rendered in th^ exercise of its jurisdiction on appeals from matters probate from the county court of said county. When filed in this court, the appellants were Alejx Mudd and Maude Lee Mudd. Since this appeal was filed, Maude Lee Múdd has secured an order from this court dismissing the appeal as to herself, and as thq' matter now stands, the appeal is prosecuted by Alex Mudd. The cause had its origin in the county court of said county by the said Alex Mudd and Maude Lee Mudd seeking a distribution of the estate of on^ Lucy Lotson Perry, deceased.
Under the provisions of sections 1354 to 1358, Comp. Stats. 1921, the said Alex Mudd and Maude Lee Mudd pleaded that the said Lucy Lotson Perry died May
ZZ.
1922; tlwt more than 4 months had elapsed since the issuance of letters of administration; that the decedent left no descendant surviving her; that she left no, husband, and that the said Alex Mudd was her brother, and the said Maude Lee Mudd was the daughter of a deceased brother of the said decedent; and prayed:
“Wherefore, your petitioners pray that this petition be set down for hearing; that notice of the same be given as provided in section 1355, of the Comp. Stats. 1921, and that upon the hearing of said petition, that the court order the distribution of said estate, leaving only such funds in the hands of the administrator as may be necessary to finish paying the debts and the cost of the! administration.”
Notice was given as provided in said section 1355, and one Samuel A. Perry, who is styled herein as the appellee, under section 1356, came into the same proceeding, denied their allegation that decedent left no husband, and made application for a distribution to himself, under said section 1354, of one-half of the estate of thej said Lucy Lotson Perry, as the surviving husband of the said decedent, and that the remaining half be distributed equally between Alex Mudd and Maude Lee Mudd.
On hearing these applications, after the notice was duly given, as provided by law, a judgment of distribution was entered by the county court, from which an appeal was taken to the district court, and on trial in the district court, the judgment from which this appeal is perfected was-entered. That judgment was in effect: ‘‘That at the time of her (decedent’s) death, she was the lawful wife of Samuel A. Perry, who survived her. . That Alex Mudd, a brother, and’ Maudej Lee Mudd, a child of a deceased brother, also survived her.” .And further, that • the said husband took one-half of the property ordered distributed and that Maude Lee Mudd took one-fourth, and that Alex Mudd took onej-fourth. The judgment was conditioned, however, by the requirements set out in section 1357, Comp. Stats. 1921. The judgment was supplemented thereafter in substance requiring the county court, from which the cause was appealed, to carry the finding and judgment of the district court into effect.
Many assignments of error are made on behalf of the remaining appellant, but those which warrant discussion resolve themselves into few. • One is that the district court had no power to enter the order of distribution in favor of Samuel A. Perry. Appellant’s argument in support of this contention is centered around the case of In re Coyne’s Estate, 103 Okla. 279, 229 Pac. 630. and is to the effect that under the sections of the statute, supra, authorizing the proceeding instituted in the county court of Craig county, a decree of heirship cannot be entered, for that a decree of heirship is exclusively authorized by sections 1359 and 1384 to 1388, Comp. Stats. 1921, inclusive.
On reading the syllabus in said case without analyzing it in connection with the facts as disclosed in the 'body of the opinion, the position of counsel could not be said to be taken without reason. In the Coyne Estate, however, the facts were such as not to justify the interpretation placed thereon which appellant seeks to give it, in support of his position. The decadent, Coyne, in that easp did not die without issue surviving; hut. on the .contrary, left surviving him a daughter, whose whereabouts for a number of years had been unknown. This daughter. Mary Ellen, would havq' been the sole surviving heir, but not having been he°rd fr m for years, a brother, Thomas J. Coyne, acquired a decree of distribution to h’mself heir, undertaking to pursue said ‘p-t’-n 1359 “on final distribution of estates,” but. as held by the court in said case, it was treated by the county court as being a subst^nti"' compliance with the provisions governing pardal distribution (sections 1354 to 1357. inclusive, Comp. Stats. 1921).
The law announced in the syllabus in thp
Coyne Case can toe held to go only to the point that the daughter could not be excluded toy the proceedings there, and the inheritance taken by her father’s brother and paid, as administrator, to himself couldi not be retained by him, she having established her status as h,is daughter. It cannot be extended to the ¡point of holding that under the partial distribution statutes, supra, the person who petitions for a partial distribution as an heir, that any dispute as to his relationship to the decedent or the amount of the estate he is entitled to receive, which may be raised by some other person, cannot heard and tried by the court. The judgment entered on such hearing is conclusive as against all- the parties before the court, but it does not operate as a decree of heirship in the sense that it excludes all other persons foreign to the proceedings for partial distribution who may afterwards come in and desire to be heard,
under
sections 1359 or 1384 to 1388, inclusive, Oomp. Stats. 1921. But in the instant case, the petition for distribution toy the appellee is on the ground that he was the lawful husband of the deceased. ‘Under the statute, since it is admitted that decedent left surviving no descendants, he would receive as an heir one-half of her property, the remaining half to go m as many divisions as might on a determination of heir-ship hq adjudged there were separate and distinct heirs. How many collaterals there might be to take the other half would not in any wise affect the husband’s right to one-lialf of the property, if in fact he was the lawful husband. Apparently it was conceded by the appellant here, through counsel, in the district court that the issue of whether he was the lawful husband of the deceased was, an issue properly triable there. For in the opening statement of counsel for the appellant here, it was stated, among other things :
“It is simply a case to determine whether or not Sam Perry is also entitled to share as an heir, and that right we deny, because there never w'as a valid marital relation existing.”
It was not contended in the district court that the right to enter the order for Samuel Perry’s part under the partial distribution statutes did not exist, if the court, on trying the facts which the brother and the niece of the deceased disputed, found that Samuel A. Perry was the lawful husband of the intestates. If the partial distribution sections (1354 to 1358, Comp. Stats. 1921) can be defeated by an heir or alleged heir claiming that the person who makes application' under such provisions is not an heir, and thej court has po power to try that issue under the proceedings in said sections provided for, an objection, whether in good or bad faith, would work a prae-tical nullification of the jurisdiction conferred upon the county court by said sections.
Th^ case relied upon by the appellant as stripping the court of the jurisdiction assumed only goes to the extent, when properly construed, of holding that the absent daughter, whose existence! had been known and who would be the heir of her deceased father, if living, could not be excluded from claiming his property, unless sections 1359 or 1384 to 1388, Comp. Stats. 1921. were complied with. This person known to have been in esse, and known to hare been the daughter of the decedent, precluded the brother from taking any share as an heir, if living, and she could not be barred from subsequently litigating her rights as against him, except by a decree of hejirship determinative of the distributees as against [he world, as provided by the said last-mentioned sections of the statute.
The contention made by appellant on this issue argued in the brief is in reason without merit. In the instant case, wej have the alleged husband of the decedent coming into the same case where other alleged heirs made application for partial distribution, and also asking that distribution be made to himself. A decree of any sort ordering a distribution of funds, snob as here, necessarily requires a finding that the person to whom it is directed to be made is in fact an heir. There is nothing in the statute which precludes the county court, or the district court on appeal, from hearing evidence, and finding facts, both as to whether the applicant is an heir at all, and if so, the amount of his interest. But in this statute there is nothing that makes such finding rr judgment conclusive against the world as a decree of heirship, as under the subsequent sections of the statute, when final, it is. Th^ husband, if found and determined
to
be such, would be entitled to-one-half of the estate, it being conceded by all that Lucy Lotson Perry was survived by no descendants. The other one-half would go .to collaterals, under our statute (section 11301, subd. 2). The determination that these petitioners should share in the estate would, undqf this proceeding, not be conclusive as against someone else who might, on determination of heirship in the strict sense of the term, establish a right to participate as an heir.
"While! in his brief appellant contends that
the court had no power or jurisdiction to hear a dispute as to the relationship of the alleged heir to the decedent, under the provisions of th^ statute here pursued, yet the right of the appellant ■himself to participate to the amount prayed, and as inheriting as claimed in his petition, along with his niece, Maude Lee Mudd, is vitally in dispute in the case, and yet one of the errors assigned by plaintiff in error’s counsel is:
‘‘15. That said court erred in refusing to order the whole of the estate of said deceased distributed to these plaintiffs in error in equal shares.”
'Should this court sustain this quoted assignment of error — and it can hardly be presumed that the plaintiff in error would make an assignment without desiring 'that the court sustain it — we would have to rule against the contention made in the brief as to the want of jurisdiction of the court to determine such a dispute.
Appellant again contends that the district court should not have] permitted an amendment to appellee’s petition for partial distribution. The amendment only went into greater detail as to the method and manner of the marriagej between the appellee and the decedent. We think this amendment was wholly unnecessary, as by the petition filed by the appellee in the! county court for partial distribution he had definitely set up that he was the husband of the decedent, Lucy Lctson Perry, and this was the issue tried in the county court, and before the district court on appeal.
While appellant devotes much space in his brief to the allegation that common-law marriages hav^ been abrogated by statute, we shall not concern ourselves with his dissertation on that subject, for we feel if anything is 'settled in the lajv off this state, so far a.j the court is concerned, the method of entering into the marriage relation as known at common law is fully recognized. The court is through with that question. Should it meet with disturbance again, let it be at thej hands of the legislative branch! of the government. In re Love’s Estate (1914) 42 Okla. 478, 142 Pac. 305; Palmer v. Culley et al., 52 Okla. 454, 153 Pac. 154; Draughn v. State, 12 Okla. Cr. 479, 158 Pac. 890; Sanders v. Sanders, 67 Okla. 3, 168 Pac. 197; Coleman v. James, 67 Okla. 112, 169 Pac. 1064; Thomas v. James, 69 Okla. 285, 171 Pac. 855; Smith et al. v. Blunt, 84 Okla. 225, 202 Pac. 1027; Dunlap v. Dunlap. 88 Okla. 200, 212 Pac. 608; Stuart, Guardian, v. Schoonover, 104 Okla. 28, 229 Pac. 812.
In th^ instant ease, the decedent had secured a divorce from her former husband, Beaver, in the district court of Craig county on the 16th day of July, 1921. On the 21st day of October, 1921, after issuance of license in accordance with the law of thej state of Missouri, a ceremonial marriage was entered into between appellee^, Samuel A. Perry, and the decedent, Lucy Lotson Beaver.
If it be conceded that under the case of Atkeson v. Sovereign Lodge W. O. W., 90 Okla. 154, 216 Pac. 467, this marriage was without legal force, the contracting parties being residents and domiciled in the state of Oklahoma, thq question under the record arises as to whether or not it was meretri-tious, and if so, whether or not the record disclosed that its meretritious character continued to the death of th^ deceased. (In last-named case there was a divided court.) To be meretritious, it must have been knowingly illicit. At the time of this marriage], the said Atkeson Case had not been rendered by this court, and even many members of the bar (and some members of this court) believed that under the law of this state, the inhibition against marriage contained in each decree until the ejxpiration of six months was not one which continued the marital status, so as to render invalid a marriage contracted in a jurisdiction where it would otherwise be valid. This idea was quite general among the citizenship as disclosed by the Atkeson Case itself, and there is nothing in the record that ejven indicates that the intentions of the parties at the time of entering into this relation by the marriage ceremony, intended other than than their relation should be matrimonial ar'1 not meretritious. Immediately a.ter the said ceremony, the decedent wrote her brother, appellant herein, and his wife, announcing her marriage, and advising them the date of her intended upturn to Oklahoma. That a feast or wedding supper was given on their return from Kansas City; that the appellee and the decedent stopped on their way back at the home of one Annie Slager, near Baxter Springs, Kan., and there made known their marriag^ to their friends. The fact of their marriage was carried in the Kansas City papers, the account of which was read toy friends and relatives in Craig county, Okla.; that shortly after returning to • Craig county, decedent wqnt to the bank in Yinita, the county seat of said county, and advised of her marriage and requested that her 'bank account toe changed irom the name of Lucy Braver to the name of Lucy Perry. That the appellee and the decedent visited among their friends and acquaintances, and on all occasions were recen ed as
occupying the relation each to the other oí husband and wife. When introductions were necessary, they were so introduced. About a month after their return from Kansas City, decedent and the appellee were invitejd to accompany a party of Quapaw Indians and their wives and children on a camping expedition to itb,e Mexican border, and among the numerous people who took this trip there was nothing except an unquestioned recognition of the decedent and appellee as husband and wife, they occupying, to the knowledge of all, the same tent, and the relation of husband and wife in every s^nse. These matters go to their good faith intent in entering into the Kansas City ceremony. These people were Indians. The Quapaw agency of the federal government was located at Miami, Okla. Soon after their return, they made a trip to Miami, the appelle.e and the decedent going together, where the agent was advised by the decedent of her marriage to the appellee and requested that her name be changed on the Indian records from Lucy Lotson Beaver to Lucy Lotson • Pejrry. Several visits were made up to March IP, 1922. About this last named date, her last visit was made to the agency at Miami, accompanied by her husband, and apparently on that date the first official action by the Indian agency was taken on her request, made in'the presence of the appellee, that her business with the agency be transacted in her name as Lucy Lotson Perry, Samuel A. Perry, ap-pellee, was continuously, mot only to relatives and friends, but to all persons, whether laborers or otherwise, with whom they had transactions, presented as hejr husband. Later, she appeared at the Indian agency at Pawhuska, she being an Osage, and sometime shortly before thej 21st of March, 1922, in company with her husband, Samuel A. Perry, appellee herein, and introduced him as her husband, and requested that the records of the Indian agency there be changed to show her name 'Lucy Lotson Perry instead of her former namei, Lucy Lotson Beaver. And thereafter, at said Pawhuska agency, the matters touching her Indian property rights were transacted in her name as Lucy Lotson Perry. The record further discloses that she, being an Osage, and recognizing that her Osage people usually gave gifts in accentuation of the matrimonial obligations, on one occasion presented thej appellee a team of horses, at the same time referring in her conversation, relative thereto, to tt-' customary pledge among- her tribal people, of continuous marriage relation and cohabitation, as long as both of the parties lived, and wistfully expressing that sam^ should ever be between herself and appellee.
The record further discloses that on one occasion, in the presence of Maude Lee Mudd, whose áppeal herein has been dismissed, in discussing the fact that a marriage among white people was only necessary to be consummated once, apparently meaning that the Indians in a measure still look with; sanctity upon their old tribal method of consummating marriage], and while feeling that they were called upon, under the new order of things, to follow the laws enacted under thej control of their white neighbors, she remarked- that a further solemnization in ' keeping with their tribal customs was not amiss. That the observance! of such tribal custom was referred to in presenting the said team to her husband, with a declaration which apparently was understood to be in keeping with the formal marital assent between a man and woman among the Osages, that they expected to live together as man and wife till death. This was after her said disability cejased.
It is beyond controversy that after the marriage ceremony in Kansas City, and after the six months period from July 16th expired, and continuously, she bore the name of Lucy Lotson P^rry on the records of the tribal agencies, on the bank records, and in the transaction of her business affairs; that she repeatedly made known the marriage; that they lived together after the six months period expired as man and wife; that when she became sick, in the spring of 1922, the appellee arranged to takej her to Mayo’s Hospital, in Minnesota, for an operation, but she refused to go. That she went along with him for treatment to an Indian doctor near Kellyville, in Creek county, and there discussed with her friends how kind appellee had been to her since their marriage; that she diejd, and was buried as Lucy Perry. The appellee, Samuel A. Perry, was recognized by Alex Mudd and .Maude Lee Mudd as the husband of Lucy Perry up to the tim^ of her death. Samuel A. Perry, appellee herein, as the surviving husband of Lucy, made affidavit necessary to have an administrator appointed oí the estate of the de'cedent. Under this state of facts, did there exist a lawful marriage at the time of the death of Lucy?
In the niatuse- of things, there can be no fixed standard by which the sufficiency of evidence of a common-law marriage can be governed. 18 R. C. L., page 426. At common law, marriage was recognized as being created per verba de praesenti. It was the mutual present consent from each to
the other that created the bonds oi matrimony. frequently, in discussing common-law marriages, the courts have injected confusion as to what was necessary to constitute thtj relation. The confusion has arisen, however, by not clearly distinguishing between what is to be established and the method of establishing it. In all matters of marriage at common law the question to be “reached is whether or not there was a contract between the man and the woman to be husband and wife, not in the futurej, but in the present. In re Hulett’s Estate (Minn.) 34 L. R. A. 384. In the absence of convincing evidence direct in its .nature, as to such an agreement, and for the purpose of reaching the conclusion that such an agreement or meeting of minds actually existed betvrieen the parties, facts and circumstances might be introduced in evidencej, such as the conduct of the parties, the manner each was held out by the other to the public, the relation they sustained to each other, etc., but this character of evidence is only for the purpose of giving rise to the implication that the contract of marriage actually existed between the parties.
Bishop in his work on Marriage and Divorce, in treating of marriages formally entered into in good faith, where there was an impediment to th^ marriage on the part of one of the parties at the time of the ceremony, says:
“If the parties desire marriage and do what they can to reinder their uni< n matrimonial. though one of them isi under a disability, their cohabitation thus matrimonially meant will in matter of law make them husband and wife, from the moment when the disability is removed." 1 Bish., Mar. & Div., secs. 970, 975, 979. Teter v. Teter, 101 Ind. 129; Poole v. People (Colo. Sup.) 52 Pac. 1025.
As said by the Supreme Court of Kansas, through Justice Johnson (60 Pac. 311), which has been followed in effect by this court, reiterating the doctrine theretofore laid down in the case of Renfrow v. Renfrow, 60 Kan. 277:
“An express agreement between the parties to take and live with each other as husband and wife is not necessary. The agreement to do so may be implied from their acts and conduct in mutually recognizing and holding each, other out as bound together in the matrimonial state.”
In the instant case!, a marriage was formally entered into or celebrated. There is nothing in the record to even indicate that the deceased and the appellee entertained any other thought than that this .formal cereimony created the relation of man and wife. Numerous expressions by word of mouth were had after the impediment of the decedent had terminated, showing conclusively the regard that each had to the other was that of husband and wife. In their business transactions and in their social relations, they were recognized as such. Under these conditions, as disclosed by the record, it cannot with any degree of reason be contended that at the time of Lucy Lotson Perry’s death she was not the lawful wife of the appellee. This was the finding of the district court upon all the evidence. A marriage vel non, being in its nature an issue triable as an action at law, if there is evidence reasonably tending to support the conclusion reached, it cannot <b.e disturbed by .this court.
Thcs judgment of the .district court ordering the county court to distribute one-half the estate to the appellee as the husband of the decedent is affirmed.
NICHOLSON, C. J.. and HARRISON, LESTER, CLARK, and RILEY, JJ„ concur. MASON, PHELPS, ana HUNT. JJ., dissent.