author: DUPREE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Jeffrey R. MacDONALD, Defendant.
    No. 75-26-CR-3.
    United States District Court, E.D. North Carolina, Fayetteville Division.
    April 25, 1985.
    Brian M. Murtagh, U.S. Dept, of Justice, Sp. Prosecutor Section, Washington, D.C., for plaintiff.
    Wade M. Smith, Raleigh, N.C., Brian O’Neill, Santa Monica, Cal., for defendant.
   ORDER

DUPREE, District Judge.

Post-trial motions of the defendant, Jeffrey R. MacDonald, having been denied, the government has filed a motion pursuant to Section 1406 of the Victims of Crime Act of 1984, 18 U.S.C. § 3671, seeking forfeiture by MacDonald of all proceeds received by him from publication of the book Fatal Vision and the airing of a television program by the same name. MacDonald opposes the motion, responding that requiring forfeiture under 18 U.S.C. § 3671 would violate the ex post facto clause, article I, section 9, clause 3, of the United States Constitution.

MacDonald’s wife and two young daughters were brutally murdered in their apartment at Fort Bragg, North Carolina, on February 17, 1970. Charges against him for the murders were dismissed by the Army in 1970 but a reinvestigation resulted in MacDonald’s being indicted for the crimes by a federal grand jury on January 24, 1975. Following a series of pre-trial motions and interlocutory appeals, the case came on for trial in July of 1979.

On July 16, 1979, the first day of jury selection in the case, MacDonald and author Joseph McGinniss, through their attorneys, entered into a contract under which MacDonald granted to McGinniss “exclusive story rights to the life of Dr. Jeffrey R. MacDonald” in return for a percentage of the profits realized from the story rights. MacDonald was convicted by the jury of three counts of murder on August 29, 1979 and his attempts to have the convictions overturned on direct appeal were unsuccessful. United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982); United States v. MacDonald, 688 F.2d 224 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). Four post-trial motions were subsequently filed by MacDonald challenging his convictions, all of which were denied. United States v. MacDonald, No. 75-26-CR-3 (E.D.N.C., March 1, 1985); United States v. MacDonald, No. 75-26-CR-3 (E.D.N.C., October 1, 1984).

In August of 1983, G.P. Putnam & Sons, a New York publisher, published a book written by Joseph McGinniss about the MacDonald case titled Fatal Vision. The book was apparently well received, for it served as the basis for a four-hour television program depicting facts of the case as told by the author in the book. The government has submitted documents accompanying its motion for forfeiture which show that from October 2, 1979 through August 7, 1984, MacDonald received. $83,-101.56 in proceeds under his contract with McGinniss and, according to the government, he will receive additional money in the future from literary and television rights. The record also contains a copy of a complaint filed , in a lawsuit brought by MacDonald in the United States District Court for the Central District of California against Joseph McGinniss seeking damages for breach of contract. The government by its motion for forfeiture under 18 U.S.C. § 3671 seems to request forfeiture by MacDonald not only of the proceeds under the contract from October 2, 1979 through August 7, 1984 and any money he receives after August 7, 1984, but also any money he receives by settlement or through judgment in his lawsuit in California.

The government premises its argument for forfeiture on Section 1406(a) of the Victims of Crime Act of 1984, 18 U.S.C. § 3671(a), enacted on October 12, 1984 to take effect November 12, 1984, which provides in pertinent part

Upon the motion of the United States attorney made at any time after conviction of a defendant for an offense against the United States resulting in physical harm to an individual, and after notice to any interested party, the court shall, if the court determines that the interest of justice ... so requires, order such defendant to forfeit all or any part of proceeds received or to be received by that defendant, or a transferee of that defendant, from a contract relating to a depiction of such crime in a movie, book, newspaper, magazine, radio or television production, or live entertainment of any kind, or an expression of that defendant’s thoughts, opinions, or emotions regarding such crime.

The Senate Report on the Victims of Crime Act of 1984 states the self-evident purpose of the Act to be “to derive funds for the [victim’s assistance] program primarily from wrongdoers who are responsible for the suffering of victims.” S.Rep.No. 497, 98th Cong., 2nd Sess. 5, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3607, 3611. This policy and the interests of justice will be served, so argues the government, by requiring MacDonald and his “transferees” to forfeit under 18 U.S.C. § 3671 all proceeds received or to be received from the depiction of the events surrounding his family’s murder in 1970. MacDonald replies that the statute was enacted almost fifteen years after the murders for which he was convicted occurred and cannot, therefore, be applied to him because to do so would increase the penalty imposed upon him for the crimes for which he was convicted in violation of the ex post facto clause of the Constitution. These arguments join to form a single narrow question to be answered by the court which is whether application of the forfeiture provisions of 18 U.S.C. § 3671 to a criminal defendant who is convicted of crimes committed prior to passage of the statute would violate the constitutional prohibition against ex post facto laws.

“So much importance did the [Constitutional] [Convention attach to [the ex post facto prohibition], ... that it is found twice in the Constitution.” Kring v. Missouri, 107 U.S. (17 Otto) 221, 227, 2 S.Ct. 443, 448, 27 L.Ed. 506 (1883). The purpose of the ex post facto clause, article I, section 9, clause 3, and article I, section 10, clause 1, is to prevent the states and Congress from passing any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then pre-scribed_” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867); see Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).

In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), a Florida inmate challenged the constitutionality of a Florida statute enacted after his conviction which reduced the amount of gain time for which he was eligible resulting in an extension of his prison sentence by more than two years. Writing for the court in Weaver, Justice Marshall explained that “two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29, 101 S.Ct. at 964 (footnotes omitted); see Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Dufresne v. Baer, 744 F.2d 1543, 1546 (11th Cir.1984); Marshall v. Garrison, 659 F.2d 440, 444-46 (4th Cir.1981). Because the new Florida statute deprived Weaver of gain time credits which he would have been entitled to under the pre-existing law, the court held that the new law violated the ex post facto clause of the Constitution. Weaver, 450 U.S. at 36, 101 S.Ct. at 968.

Applying the two-part test announced in Weaver to the facts in the present case, the court concludes that Section 3671 cannot be constitutionally applied to MacDonald. There can be no doubt that the statute is retrospective within the meaning of the first part of the Weaver test. Although the parties have extensively argued the question of whether Congress intended the forfeiture law to be retroactive, “it is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.” Weaver, 450 U.S. at 31, 101 S.Ct. at 965 (footnote omitted). The government by its motion for forfeiture is asking the court to give Section 3671 retroactive effect by requiring MacDonald to forfeit all proceeds received or to be received by him or his transferees under the July 16, 1979 contract and his lawsuit against author Joseph McGinniss. This being so, the statute is retrospective within the meaning of Weaver because the government is seeking to change “the legal consequences of acts ... [committed by MacDonald] before [Section 3671’s] effective date.” Id. at 31, 101 S.Ct. at 965.

The second part of the Weaver test requires the court to determine if retroactive application of the challenged statute would disadvantage the criminal defendant affected by it. This, of course, is precisely what the government is attempting to do through its motion. Regardless of how the government phrases the argument, its goal is to have MacDonald forfeit the monetary benefits he has received from the crimes for which he was convicted. True, the forfeiture statute serves a valuable purpose in preventing wrongdoers from profiting from their crimes, but, under the Weaver test, Section 3671 would be ex -post facto as applied to MacDonald.

The government appears to argue that even if Section 3671 is found to be ex post facto as applied to events occurring before its effective date of November 12,. 1984, MacDonald would yet be subject to its provisions were he to receive any money or enter into any contracts after November 12, 1984. Although not directly addressed by the Supreme Court in Weaver, a similar argument was implicit in that case. There, Weaver’s sentence straddled the effective date of the Florida statute depriving him of gain time. The court held that his gain time was not to be computed by a new statute or even a hybrid method, but by that law which was in effect when the crimes were committed. See Weaver, 450 U.S. at 36, 101 S.Ct. at 968. This is consistent with the well-settled rule that the critical date for ex post facto analysis is the date on which the crime was committed by the criminal defendant. Id. at 30-31, 101 S.Ct. at 965; Marshall v. Garrison, 659 F.2d 440, 442 n.3 (4th Cir.1981). In the present case, MacDonald was convicted by a jury of crimes which were committed in 1970. The court imposed upon him the maximum sentence allowed under the law existing at that time, three consecutive life sentences. The government cannot now constitutionally impose upon him additional punishment even though he has profited from the events surrounding the crimes.

The government’s motion for a special order of forfeiture under Section 3671 of the Victims of Crime Act of 1984 is denied.

SO ORDERED.

      . I have neither read the book nor seen the television program.

      . The specific relief the government seeks is not altogether clear from its motion and briefs.

      . The term "transferee" is not defined in the Act but its definition is not essential to the court’s decision.

      . The absence of any reference to retroactivity in the statute or its legislative history strongly suggests Congress did not intend the statute to look backwards. In any event, if the statute is ex post facto, what Congress intended becomes irrelevant.

      . MacDonald has also argued that Section 3671 is unconstitutional because it (1) chills speech protected by the First Amendment; (2) violates the due process clause and is a taking of property under the Fifth Amendment; and (3) impairs a criminal defendant's Sixth Amendment right to counsel. In view of the court’s decision that Section 3671 is unconstitutional as applied to MacDonald, the court need not address the merits of these arguments.


source: Caselaw Access Project

license: Public Domain

text:
    Anthony GRAVES, Plaintiff, v. Margaret M. HECKLER, Defendant.
    Civ. A. No. 84-2909.
    United States District Court, District of Columbia.
    April 25, 1985.

      John S. Olshin, Washington, D.C., for plaintiff.
    James N. Owens, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

This is a social security case in which the Court must determine whether the decision of the Secretary to deny plaintiffs claim of disability benefits is supported by substantial evidence. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Secretary’s decision in this case that plaintiff is not so mentally impaired as to prevent him from engaging in work-related activities is plainly not supported by substantial evidence.

I

Plaintiff has been institutionalized at John Howard Pavilion at St. Elizabeth's Hospital since June 23, 1982, after having been found not guilty by reason of insanity on thirteen charges of rape, sodomy, and assault, involving five different women. Under the law (D.C.Code 24-301(e)), plaintiff may be released only pursuant to a court order, and no suggestion has been made by anyone that plaintiff is or in the foreseeable future will be fit for release.

In fact, plaintiff has severe mental impairments, the diagnosis being mixed personality disorder with schizoid and borderline features. The administrative law judge (AU) who made the decision on behalf of the Secretary, acknowledged this diagnosis, but he then went on to deny the benefits on the basis that “the claimant does not have any impairments which significantly limit his ability to perform basic work-related activities; therefore, the claimant does not have a severe impairment (20 C.F.R. 404.1521).” That conclusion is incorrect for several reasons.

First. The AU’s finding conflicts with the regulations themselves. An individual is disabled if he has a severe impairment which “meets or equals a listed impairment in Appendix 1.” 20 C.F.R. § 404.1520(d). The record shows that plaintiff suffers from functional nonpsychotic disorders as described in § 12.00 of Appendix 1, in that there is clinical evidence of “persistent, deeply ingrained, maladaptive patterns of behavior manifested by either: a. seelusiveness or autistic thinking; or b. pathologically inappropriate suspiciousness or hostility” and that this results in the persistence of a seriously impaired ability to relate to other people. See 20 C.F.R. § 404, Appendix 1, § 12.04. Thus, pursuant to the Secretary’s own regulations, plaintiff is disabled. It is unlikely that the Secretary would conclude that a long-term hospital patient with a chronic physical ailment is able to perform “work-related activities;” a different standard cannot be employed, in this day and age, for persons forced to remain in a hospital for mental reasons.

For the reasons stated, there is no “substantial evidence” to support the ALJ’s findings, and reversal is required on that basis alone. Lewis v. Weinberger, 541 F.2d 417, 421 (4th Cir.1976).

Second. All the medical witnesses testified that plaintiff will require continued hospitalization because of his mental condition and his continued dangerousness to others. Thus, Dr. Daniel Sweeney stated that plaintiff “appears physically able to work as evidenced by his employment prior to coming to the hospital. He is, however, in need of further hospitalization as a result of his potential dangerousness to others.” Record at 128. Dr. Paul J. Peckar similarly found that plaintiff remained mentally ill and dangerous as a result of mental illness, and he further stated that

With regards to Mr. Graves’ capacity to engage in work it is my opinion together with that of the treatment team that Mr. Graves is severely disabled from working because of his extreme explosive rage and the repressed anger that lies behind it. It will be sometime before Mr. Graves is ready to return to the work force, but his treatment is progressing although ever so slowly.

Record at 2B. And Dr. E.O. Hume checked off a box on a form indicating that plaintiff was not capable of engaging in competitive employment, but then went on to state “Capable, but is currently hospitalized on a locked ward having been found not guilty by reason of insanity.” Record at 123.

This is not a case where the AU had to weigh conflicting medical testimony. Instead, it is a case where it is the unanimous medical opinion that plaintiffs mental illness requires his hospitalization in a secure ward because otherwise his inability to control his rage, caused by mental illness, makes him a danger to the community. In such circumstances, the AU had the duty, as a matter of law, not to disregard the opinions of the medical experts — a duty which he failed to fulfill.

Moreover, the medical opinions are fully supported by the objective facts. There is, in the first place, plaintiffs court-ordered confinement in a mental hospital. Beyond that, there is uncontradicted evidence that plaintiff has a long history of bizarre behavior, which includes the cutting off of heads of chickens and drinking their blood; enjoying pain; being able to spit up blood at will; and inability to control his rages, particularly in relation to women. At St. Elizabeth’s itself, plaintiff has become abusive at women; “threw chairs and punched the wall” in his anger at a woman therapist; on one occasion he went into an extreme rage over a trivial matter; and on another he attacked another patient in a rage which would have resulted in murder had plaintiff not be restrained by the staff.

It is this individual whom the ALJ found to have no “impairments which significantly limit his ability to perform basic work-related activities.” Record at 16. This finding was patently erroneous.

Third. Most basically, the Act directs the ALJ and hence of the Secretary to determine whether a claimant should be expected to earn his living in the work force or whether he is so disabled, physically or mentally, that he cannot do so and should for that reason be granted disability benefits. It surpasses understanding how the ALJ could conclude that this plaintiff could earn his living in the work force when he cannot even join that work force on account of a disability which keeps him confined in a hospital and is likely to keep him there for a long period of time.

II

The Secretary also argues that plaintiff is foreclosed from obtaining disability benefits because of an amendment to the Social Security Act approved in 1980.

Section 339 of Public Law 98-21, approved October 20, 1983, added section 42 U.S.C. § 402(x)(l) to the Act, which provides, with exceptions not here relevant, that “... no monthly benefits shall be paid ... under section 423 of this title to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to his conviction of ... a felony_” Assuming that this provision can pass constitutional muster, it does not help the Secretary here, for two reasons.

First. The statute becomes operative only where there is a conviction of a felony; plaintiff was not convicted of a felony or any other offense; he was acquitted, albeit by reason of insanity. No tribunal has ever held, insofar as this Court is aware, that an acquittal by reason of insanity is a conviction for any purpose, and the Secretary has furnished no indicia of legislative intent to the Court which would support so unusual a construction.

Second. Plaintiff is not confined in a “jail, prison, or other penal institution or correctional facility;” he is confined in a mental hospital. Here again, the government has produced no evidence that Congress intended to equate a mental hospital with a jail, prison, or other penal or correctional institution.

In short, the Secretary’s reliance on the 1980 amendment is totally devoid of substance.

HI

For the reasons stated, the decision of the Secretary will be reversed. ■

      . Substantial evidence is that evidence which a reasonable mind would accept as sufficient to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972).

      . See Decision of Administrative Law Judge (ALJ), Record at 15; Record at 85.

      . 24 D.C.Code § 301(e) provides in relevant part that "[w]here any person has been confined in a hospital for the mentally ill pursuant to subsection (d) of this section, and the superintendent of such hospital certifies: (1) That such person has recovered his sanity; (2) that, in the opinion of the superintendent, such person will not in the reasonable future be dangerous to himself or others; and (3) in the opinion of the superintendent, the person is entitled to his unconditional release from the hospital, and such certificate is filed with the clerk of the court in which the person was tried, and a copy thereof served on the United States Attorney or the Corporation Counsel of the District of Columbia, whichever office prosecuted the accused, such certificate shall be sufficient to authorize the court to order the unconditional release of the person so confined from further hospitalization at the expiration of 15 days from the time said certificate was filed and served as above; but the court in its discretion may, or upon objection of the United States or the District of Columbia shall, after due notice, hold a hearing at which evidence as to the mental condition of the person so confined may be submitted, including the testimony of 1 or more psychiatrists from said hospital. The court shall weigh the evidence and, if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, the court shall order such person unconditionally released from further confinement in said hospital.” This section also provides for conditional release.

      . See letter from Paul Peckar, Medical Officer Psychiatric, Record at 2A; Record at 83-84; Report of Dr. E.O. Hume, Record at 122; Report of psychological screening of Dr. Daniel Sweeney, Record at 127-28.

      . The ALJ’s determination that plaintiff’s impairment is not severe also conflicts with the regulations. 20 C.F.R. § 404.1521 sets guidelines for determining when an impairment is not severe and thus not disabling. A severe impairment is one which significantly limits an individual’s mental ability to perform basic work activities. Plaintiff’s mental illness falls squarely within this provision as it limits his ability to use judgment and to respond appropriately to supervisors, co-workers and usual work situations. Thus this impairment is severe. 20 C.F.R. § 404.1521(b)(4) and (5).

      . See, e.g., Doe v. Harris, 495 F.Supp. 1161, 1170 (S.D.N.Y.1980), questioning whether the Secretary would require a plaintiff who was hospitalized or quarantined by reason of a physical impairment to prove inability to work if released.

      . It is difficult to visualize what the AU might have meant in that regard in this context. How would plaintiff engage in work-related activities in the community while he is confined because of mental illness in a locked ward at St. Elizabeth’s?

      . It is symptomatic of the approach the AU took in this case that he distorted this statement in his evaluation of the evidence into the flat finding that plaintiffs "treating physician states that claimant is capable of employment.” Record at 16.

      . See Moss v. Gardner, 411 F.2d 1195 (4th Cir.1969).

      . Except for the ambiguous statement of Dr. Hume.

      . Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980); Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir.1979); Wander v. Schweiker, 523 F.Supp. 1086, 1095 (D.Md.1981).

      . This factor alone should have been given substantial weight. Johnson v. Secretary, 679 F.2d 605, 607 (6th Cir.1982).

      . Record at 86, 100.

      . Record at 2A.

      . The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continued period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The regulations require a finding of disability if a claimant has a severe impairment meeting the standards of Appendix 1. Even if a claimant’s impairment is not a listed impairment, a finding of disability can be made if, after consideration of the claimant’s impairments, age, education and vocational skills, it is clear that there are no jobs available in the work place for that individual. See 20 C.F.R. § 404.1545-1569.

      . The constitutionality of this statute is presently being challenged in this Court in Wiley v. Heckler, C.A. No. 84-3478.

      . On this issue, too, there might well be substantial constitutional problems if the government were correct that Congress meant to treat this type of an acquittal as a conviction.


author: GIERBOLINI, District Judge.

text:
    GENERAL OFFICE PRODUCTS CORP., Plaintiff, v. A.M. CAPEN’S SONS, INC., Defendant.
    Civ. No. 83-2407 GG.
    United States District Court, D. Puerto Rico.
    April 25, 1985.
    Philip E. Roberts, San Juan, P.R., for plaintiff.
    Ana Matilde Nin, San Juan, P.R., for Gussco Mfg. Inc.
    Mario Arroyo Davila, San Juan, P.R., for A.M. Capens Sons, Inc.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This is an action brought by plaintiff, General Office Products Corp. (General) against defendant, A.M. Capen’s Sons, Inc. (Capen’s) to recover damages allegedly resulting from defendant’s tortious interference with the contractual relationship which previously existed between General and Gussco Manufacturing, Inc. (Gussco) under the Dealer’s Act of Puerto Rico, (Law 75, 10 L.P.R.A. 278, et seq.). Jurisdiction is invoked under 28 U.S.C. § 1332.

Defendant initially filed a motion for summary judgment and/or dismissal on February 6, 1984, arguing that Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141 did not recognize a cause of action for the tortious interference with a contract. Upon defendant’s request, the question of whether or not a cause of action existed under the facts of this case was, thereafter, certified to the Supreme Court of Puerto Rico. The Supreme Court rendered its opinion answering in the affirmative. A certified translation is included as part of the record in this case.

On August 23, 1984, defendant filed another motion for summary judgment arguing (1) that plaintiff lacks a cause of action; (2) that for the court to recognize a cause of action in this case would be the equivalent to permitting violations of the existing anti-trust laws and of sanctioning defendant’s recognized constitutional rights; and (3) that plaintiff is not entitled to any relief because it has not proven its damages enough to satisfy the jurisdictional amount required for diversity.

Since this motion contains a jurisdictional issue which is improperly brought under Rule 56 of the Federal Rules of Civil Procedure, we will consider the same also as a motion to dismiss under Rule 12(b). Accordingly, we proceed with the jurisdictional question first.

AMOUNT IN CONTROVERSY

Under Title 28, § 1332 of the United States Code, mere diversity of citizenship does not confer jurisdiction in the absence of the required amount in controversy. Accordingly, when it is established to a legal certainty that damages will not exceed the requisite $10,000, a court must dismiss the case since it lacks the power to otherwise hear the same. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).

Ordinarily, an averment in the plaintiff’s complaint that damages exceed the jurisdictional amount — if made in good faith — is sufficient for purposes of diversity jurisdiction. But when such an amount is controverted, the burden is on the plaintiff or the one seeking to invoke diversity to establish that its claim for damages is not for less than the jurisdictional amount. St. Paul, supra; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Núñez v. Confederation Life Ins. Co., 372 F.Supp. 497 (D.C.P.R.1973); Reyes v. Eastern Airlines, Inc., 528 F.Supp. 765, 767 (D.C.P.R.1981); Salgado v. Piedmont, 534 F.Supp. 938 (D.C.P.R.1981); see also, Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3702 (1976).

In Duchesne v. American Airlines, Inc., 758 F.2d 27 (1st Cir.1985), the court considered the question of whether the district court had erred by dismissing a claim after finding that plaintiff had not established that the actual amount in controversy exceeded $10,000. The court held that while it was unlikely plaintiff would recover more than the jurisdictional amount, it was not legally certain she would recover less.. The court reasoned that it was difficult to be “legally certain” the jurisdictional amount would not be met in tort cases involving a substantial claim for pain and suffering. Id. at 28.

In the case at hand, defendant argues that any damages, to which plaintiff might be entitled to, will not exceed the jurisdictional amount of $10,000 which is required for diversity. It claims that plaintiff has not met its burden of proving that its damages exceed $10,000 since the $100,000 amount propounded by plaintiff is conclu-sionary at best. We disagree.

Defendant admits in its motion that from 1979 to 1983 it sold over $68,000 in Gussco products in Puerto Rico with a gross profit of $12,899.12. If plaintiff prevails in its suit, it can conceivably obtain the loss profits as a measure of damages. Furthermore, Article 1802 (31 L.P.R.A. 5141) does not limit damages to profits alone. In light of the above, it cannot be stated with legal certainty that plaintiffs damages will be less than the jurisdictional amount. Thus, we find that we have jurisdiction to entertain this action.

MATERIAL FACTS

A summary judgment under Rule 56 of the Federal Rules of Civil Procedure is appropriate “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In ruling on such a motion, the court must look at the record in the light most favorable to the party opposing the motion. Stepanischen v. Merchants Despatch Transportation Corporation, 722 F.2d 922 (1st Cir.1983); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

Rule 56 also provides that if a motion for summary judgment is properly supported, the non-moving party may not rest upon mere allegations. Instead, it must set forth specific facts showing that a genuine and material issue exists in order to defeat such a motion. Nicholas Acoustics & Specialty Co. v. H. & M. Construction Co., 695 F.2d 839, 844 (5th Cir.1983). According to Hahn, supra, at 464.

A material issue is one which affects the outcome of the litigation. To be considered “genuine” for Rule 56 purposes, a material issue must be established by “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First National Bank of Arizona v. Cities Service Co., Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). The evidence manifesting the dispute must be “substantial", Firemen’s Mut. Ins. Co. v. Aponaug Mfg. Co., Inc., 149 F.2d 359, 362 (5th Cir.1945), going beyond the allegations of the complaint. Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir.1972).
(Emphasis added)

Mindful of the aforementioned standard, we find the following facts to be clear and undisputed:

1) Defendant, Capen’s, is a corporation with its principal place of business in New Jersey.

2) Capen’s has been buying and selling products manufactured by Gussco in the continental United States for approximately fifteen years, and has been selling these products to clients in Puerto Rico since the early 1960’s.

3) In 1978, Garriga Trading Co., Inc. (Garriga) reached an agreement with Gus-sco and became an exclusive distributor of Gussco products in Puerto Rico.

4) In 1979, General, the plaintiff corporation, was formed and subsequently assumed the distributorship rights of Garri-ga.

5) The preexisting relationship between Capen’s and Gussco continued notwithstanding the fact that General and Gussco had formed an exclusive arrangement.

6) In 1981, plaintiff complained to Gus-sco about defendant’s sales in Puerto Rico. Gussco, in turn, agreed to discontinue making any shipments to Puerto Rico but refused, however, to impose any territorial restrictions on defendant’s sales.

7) In 1983 plaintiff ceased its relationship with Gussco and filed a complaint in this court under the Puerto Rico Dealer’s Act. On September 30, 1984, plaintiff filed a suit against Capen’s under Article 1802, Title 31, § 5141 of the Laws of Puerto Rico.

Discussion

According to the Supreme Court of Puerto Rico, the question of whether or not Capen’s interfered with the contractual relationship that existed between General and Gussco turns on whether or not Ca-pen’s acted with effective knowledge of the contract. Thus, the issues of “effective knowledge” and fault, (“culpa”) are essential elements that must be proven in order to prevail under the cause of action at hand. See General Office Products Corp., supra.

Since the concept of fault is crucial in this case, its contours must be clarified and understood before a determination of its existence can be attempted. At the outset we note that, according to civil doctrine, “culpa” (fault) and negligence are not synonymous nor can fault be equated to negligence. Jiménez v. Pelegrina Espinet, 112 D.P.R. 700 (1982); Compañia Transatlántica Española, S.A. v. Meléndez Torres, 358 F.2d 209 (1st Cir.1966). Fault encompasses more and the evidence to prove it needs to be stronger and different from that of negligence. Indeed, fault is more akin to dolus. According to Puig Brutau:

In contractual liability art. 1.101 C.c. distinguishes from dolus and negligence and, in the case of extracontractual liability, art. 1.902 C.c. [Art. 1802 Civil Code of Puerto Rico] makes a distinction between fault and negligence. It is really a simple lack of precision in the terminology, since in the second case the word “fault”, as a concept different from negligence, is to be considered in the sense of dolus, which is the conduct observed with awareness or foresight of the injurious result.

Dolus means malice, bad intention, in addition to mere voluntariness. Jaime Santos Briz, Derechos de Daños, page 45, citing the opinion of the Supreme Court of Spain of December 19, 1961.

Civil dolus also comprises the knowledge of the ensuing result, together with indifference regarding said result. It is the awareness of the forthcomingness of a result which will harm the interests of another in a manner not permitted by law, in spite of which the agent, uninterested in causing harm, prefers to cause it in order to obtain some other thing he wishes to obtain. He prefers to carry out his objective even at the expense of harming, consciously, the interests of another person. In the case at bar, there was no contractual relationship between Capen’s and plaintiff so the doctrine of extracontractual liability as explained by Puig Brutau, supra, is applicable.

Considering the facts of this case in light of the above standard, we are compelled to find that fault (“culpa”) has not been established. Fault cannot be established without knowledge and, as a preface, we note that the fact that General’s contract with Gussco was oral and that Ca-pen’s had sold Gussco products in Puerto Rico long before the plaintiff corporation was even established, makes us conclude that Capen’s did not have effective knowledge of the contract.

This conclusion is buttressed by the fact that Gussco refused to impose territorial restrictions on Capen’s. Had such restrictions been imposed, Capen’s would arguably have had reason to make further inquiries — inquiries which might have lead to the discovery of the contract between the principals. However, this was not the case here.

We further note that Capen’s was unaware of Gussco’s agreement with General not to ship any of Capen’s orders that were destined to Puerto Rico — Capen’s had no reason to know of this agreement since its normal practice was to receive its orders from Gussco in the continental United States and subsequently, ship them personally to its customers in Puerto Rico. If Capen’s had known of this agreement, this too might have given Capen’s inquiry notice. But such was not the case here either.

General argues, in its opposition to the motion for summary judgment, that Ca-pen’s was informed of the contract and of General’s complaints by Gussco. However, we find the record lacks substantial evidence to support this allegation. In his affidavit, Julio Garriga, President of General, states that Gussco had informed Ca-pen’s, but the only basis for his conclusion appears to be an alleged but unsubstantiated promise by Gussco to speak to Capen’s. In his deposition, Stanley Melvin Thoma-show, Vice President of Sales and Marketing of Gussco, states under oath that he did not inform Capen’s of the contract — although he “believes” someone from Gussco “might have” mentioned it in passing. We cannot find in the record any other evidence proving that Gussco, or anyone else informed Capen’s. Thus, we find that General’s bare allegation, viewed in the light most favorable to plaintiff, is still not substantial enough to put this fact in genuine dispute and, accordingly, cannot be used to defeat defendant’s motion for summary judgment. Hahn, supra.

Aside from this, we find, in accordance with the record that, while General knew Capen’s sold Gussco products in Puerto Rico, it neither informed Capen’s of its oral contract with Gussco nor warned Capen’s of any legal ramifications.

Principles of fair play require an owner of an exclusive distributorship, upon discovering that a third party is interfering with its contractual interests, to provide said party clear and sufficient information of the relationship between the principals and of the possible consequences of any further hindrance under Law 75. If this is not done the distributor cannot then claim, barring other circumstances, that said party tortiously and with fault interfered with its contractual relationship.

Wherefore, it appearing that there are no material facts in genuine issue, defendant’s motion for summary judgment is hereby granted.

Judgment shall be entered accordingly.

SO ORDERED.

      . In General Office Products Corp. v. A.M. Capen's Sons, Inc., No. 0-84-278 (on certification to the Supreme Court of Puerto Rico, June 29, 1984), the court held that Article 1802 recognizes the cause of action in question and that such a pause of action could be applied to exclusive distributorships. The court pointed out the elements of the action as follows:
      In the first place, there must be a contract with which a third person interferes'. If what is affected is an exception or a profitable financial relationship where there is no contract, the action does not lie, although it is possible that liability be incurred under other judicial principles.
      In the second place, fault must be present. We adopt the opinion of the majority according to which the prejudiced party need only show or present facts allowing the court to infer that the third person had acted tortiously, with knowledge of the contract’s existence.
      The third element is that there must be a damage to the plaintiff. The fourth element is that said damage must be a consequence of the tortious acts of the third person. The necessary causal nexus is that between the act of the third person and its effect on the prejudiced party. That the prejudiced party’s co-contractor has had the intention to breach the contract, is irrelevant to this end. It suffices that the third person has provoked or contributed to the breach. In case of concurrent faults, the liability is solidary. (Emphasis added)

      . Under the facts of this case, we decline to interpret Law 75 as prohibiting a person from buying merchandise in the United States and thereafter reselling it in Puerto Rico where someone else has an exclusive distributorship for that type of merchandise. Such a restriction may be impermissible as repugnant to the Commerce Clause.

      . José Puig Brutau, Fundamentos de Derecho Civil, Tome II, Volume III, at 86. See abo Manresa, Comentarios al Código Civil Español, Tome VIII, Volume I, at 171 et seq. (6th Ed. 1967).

      . José Puig Brutau, supra, at 88.

      . Id. at 86. See abo Puig Peña, Culpa Civil, Nueva Enciclopedia Jurídica, Tome VI, 1956, pp. 102 et seq.; Ruggiero, Instituciones de Dere-cho Civil, Spanish translation of the 4th Italian Edition by R. Serrano Súñer y Santa Cruz Tejei-ro, Tome II, Volume I.

      . Our search for certain interrogatories referred to by General in its opposition has been extensive, but to no avail. They have not been included as part of the record in this case.


author: STERN, District Judge.

text:
    NYSA-ILA MEDICAL AND CLINICAL SERVICES FUND, Plaintiff, v. CARCO, INC., Defendant.
    Civ. A. No. 84-2190.
    United States District Court, D. New Jersey.
    April 28, 1985.
    Mark Rochkind, Caldwell, N.J., Kevin Marrinan, c/o Thomas W. Gleason, and Richard P. Lerner, Lambos, Flynn, Nyland & Giardino, New York City, for plaintiff.
    Richard R. Ahsler, Horowitz, Bross, Si-nins and Imperial, Newark, N.J., for defendant.
   OPINION

STERN, District Judge.

In this action NYSA-ILA Medical and Clinical Services Fund (“the Fund”) charges that Careo, Inc. breached certain terms of a collective bargaining agreement and of an employee benefit plan, established under the Labor-Management Relations Act, 29 U.S.C. § 186. Specifically, the plaintiff contends that Careo has failed to make contributions to the Fund on behalf of its employees as required by the collective bargaining agreement. On its motion for summary judgment, plaintiff Fund seeks recovery of unpaid contributions, pursuant to 29 U.S.C. § 1132, as well as an injunction, interest, and attorney’s fees. We now grant summary judgment in favor of plaintiff, having determined that defendant is precluded from proving prior oral understandings to vary the terms of the agreement both by the parol evidence rule and by national labor policy. For the reasons following we also grant plaintiff’s motion for attorney’s fees and double interest under 29 U.S.C. § 1132(g). Finally, we decline to enter an injunction upon the oral representations from defendant’s attorney at the hearing on March 25, 1985 that restraints are unnecessary to prevent future violations of the collective bargaining agreement.

FACTS

Plaintiff is a joint labor-management trust fund established in accord with section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186 (1976). The Fund was created by the New York Shipping Association-International Longshoreman’s Association (“ILA”), AFL-CIO, collective bargaining agreements and an Agreement and Declaration of Trust and Plan in March 1961. It provides medical and clinical services to eligible longshoremen covered under collective bargaining agreements between the shipping association and the ILA and between other employers and affiliated locals of the ILA, including Local 1478-2. See Fier Aff. at ¶ 3. Defendant Careo, Inc. is a New Jersey corporation which services piers for automobiles and employs individuals who participate in the plaintiff Fund. See Answer at If 4.

Defendant admits that on September 1, 1979 it entered into a collective bargaining agreement (“1979 Agreement”) with Local 1478-2, ILA. See Answer at Counterclaim ¶[ 1. Paragraph 16 of this 1979 Agreement required Careo to “contribute for all hours worked, also holidays and vacations to the Clinic and Clinical Services in Port Newark,” i.e., to plaintiff Fund. See Fier Aff., Exh. A. The 1979 Agreement was to continue for three years, ending August 31, 1982, but would be “automatically renewed from year to year unless written notification be given by either party ... at least sixty days prior to the expiration hereof, that changes in the agreement are desired.” See 1979 Agreement at II17, Fier Aff., Exh. A.

Carco’s president, Alan S. Husak, claims that he notified the Fund, in a letter of May 6, 1981, that defendant intended to end its relationship with the Fund by the end of 1981 “due to the high cost of double coverage ... ”. Husak Aff., Exh. A. Subsequent conversations with plaintiff’s representative allegedly resulted in “an Agreement” that Careo would end its relationship with the Fund on August 1, 1982. Husak Aff. at ¶ 8. Apparently, this “Agreement” was never memorialized in writing. By letter of August 10, 1981, Husak notified the union’s president, Vincent Cuzzo, that Careo would withdraw from the medical plan as of August 1, 1982. See Husak Aff., Exh. B. Again, plaintiff neither presents evidence, nor alleges, that the medical fund or the union agreed to this withdrawal in writing.

The following year, in July 1982, the union submitted to defendant a proposed form of a collective bargaining agreement dated September 1, 1982 (“the 1982 Agreement”). This 1982 Agreement was “much the same” as the 1979 Agreement. Husak Aff. at 1110. Defendant refused to sign it since it still included paragraph 16, requiring Careo to make payments to plaintiff Fund. Id. at ¶ 11. Neither plaintiff Fund, nor Careo claims that defendant ever signed the proposed 1982 Agreement.

Nonetheless, in August 1982, defendant did execute an “amendment to the 1979 Agreement” (“the 1982 Amendment”). Id. at 1113. This document provides, in pertinent part, that “[T]he current Collective Bargaining Agreement between the undersigned employer and union is hereby extended for a period of three [3] years to and including August 31, 1985 except for the following changes ...” Fier Aff., Exh. B. The only “change” listed concerning medical coverage provides:

4. Blue. Cross/Blue Shield coverage shall be continued for all employees except that coverage for employees hired on or after 9/1/82 shall not begin until they have completed thirty (30) days of employment with the employer within a four and one half (472) month calendar period.
Likewise, such coverage shall continue for a period of thirty (30) days after the termination of employment of an employee for any reason.

Id. There is no mention of removing the medical coverage provided by payments to plaintiff Medical Fund.

However, Mr. Husak claims that he signed the 1982 Amendment only because the union president assured him that it would not obligate defendant to continue to make contributions to the Fund. See Hu-sak Aff. at 1113. He asserts further that he was under pressure to sign due to an “impending strike of the defendant’s employees as a result of the unexecuted 1982 draft.” Id.

Nevertheless, defendant made at least six payments to the Fund after executing the 1982 Amendment. Copies of these checks, dated September 1982 through February 1983, are appended to the Fund’s moving papers. See Fier Aff., Exh. C. Defendant neither denies nor explains these payments.

In moving for summary judgment, the Fund asserts that the 1982 Amendment, on its face, incorporates the entire 1979 Agreement — including paragraph 16. Car-eo counters that it never executed the 1982 Agreement, and that it signed the 1982 Amendment under duress — the strike — and only because union representatives falsely represented that the Amendment removed the need for payments to the Fund. Thus, defendant argues that this 1982 Amendment is not a valid enforceable contract. In reply, plaintiff contends that both the parol evidence rule and national labor policy bar proof of these prior oral understandings.

DISCUSSION

I. The Parol Evidence Rule

The parol evidence rule bars the introduction of extrinsic evidence of prior or concurrent oral understandings to alter or contradict the terms of an unambiguous written agreement. See, e.g., Zugelter v. Bank of America National Trust Fund and Savings Assoc., 728 F.2d 218, 220 (3d Cir.1984); Restatement (Second) of Contracts § 213(1) (1981). Defendant counters that parol evidence is nevertheless admissible to show that there was no valid agreement between the parties.

This argument is flawed in the context of this case because, in the collective bargaining setting, this exception to the parol evidence rule is extremely narrow. The Third Circuit in Lewis v. Mears, 297 F.2d 101, 104 (3d Cir.), cert. denied, 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed.2d 276 (1962), held that parol evidence was admissible to show that the written agreement to make payments into a welfare trust fund never became effective because it was not fully executed and delivered. Subsequently, courts in this circuit have emphasized that this exception only “permits an employer to show by parol evidence that no agreement at all was intended by the parties.” Huge v. Long’s Hauling Co., Inc., 590 F.2d 457, 464 n. 8 (3d Cir.1978) (concurrence), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979) (emphasis added); see also Lewis v. Seanor Coal Co., 382 F.2d 437, 443 (3d Cir.), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968); Local Union No. 1987, IBEW v. Control Products Co., 330 F.Supp. 250, 253 (W.D.Pa.1971), aff'd, 475 F.2d 1395 (3d Cir.1973) (“The only exception ... allows a party to establish that the collective bargaining agreement was never consummated or never came into existence because a condition precedent never occurred.”).

Taking defendant’s allegations as true and resolving all inferences, doubts and issues of credibility in its favor for purposes of this motion for summary judgment, Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3d Cir.1972), we are unable to find that the evidence Careo offers fits within this narrow exception to the parol evidence rule. Both parties agree that the proposed 1982 Agreement remains unexecuted. Plaintiff, however, bases its motion for summary judgment on the 1982 Amendment. And Careo nowhere alleges that this Amendment “never came into existence,” Control Products, 330 F.Supp. at 253, or that “no agreement at all was intended,” Huge, 590 F.2d at 464 n. 8. Instead, defendant seeks to prove prior oral understandings to show that the 1982 Amendment does not mean what it says. This is precisely the type of evidence the parol evidence rule was designed to preclude; certainly it is barred in the context of collective bargaining.

II. National Labor Policy and Oral Agreements

Section 302(c)(5) of the National Labor-Management Relations Act, 29 U.S.C. § 186(c)(5)(B) requires that the detailed basis upon which payments are to be made to a trust fund, such as plaintiff Fund, be specified in a written agreement with the employer. The Third Circuit has held that oral modifications of a written trust fund agreement specifying such payments are ineffective because they violate public policy as set forth in section 302(c)(5)(B). Lewis v. Seanor Coal Co., 382 F.2d 437 (3d Cir.), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968). At least one district court in this circuit has extended this principle to hold that prior oral understandings are also legally insufficient to defeat claims for unpaid contributions to a section 302 fund. See Boyle v. North Atlantic Coal Corp., 331 F.Supp. 1107, 1108 (W.D.Pa.1971).

Boyle was cited approvingly by the Third Circuit in Huge v. Long’s Hauling Co., 590 F.2d 457, 459, 464 (3d Cir.), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979)—a case in which the court prevented the employer from raising an anti-trust defense against the trustee’s request for a preliminary injunction. Indeed Judge Adams, concurring in Huge, explained that national labor policy has long prevented courts from considering the usual contract defenses to collective bargaining agreements. “[T]he courts have disallowed defenses sought to be interposed by employers to enforcement of the contract based on such grounds as failure to establish a different agreement, fraud, misrepresentation, and duress on the part of the union.” Id. at 464. Judge Adams even recognized that the defendant in Huge was in a more appealing position than the typical employer trying to avoid its contractual duty to contribute to a pension fund because the defendant continued to make payments to a private fund. Id. at 465. Similarly, in this case, Careo apparently provides some form of medical coverage through Blue Cross/Blue Shield in addition to the coverage from plaintiff Medical Fund. Nonetheless, the judge determined that the situation did not justify a departure from a rule barring employer defenses of a side agreement to suits by pension funds. Id.

We find this reasoning equally applicable to section 302 medical funds established under collective bargaining agreements. The present case is analogous to the situations found in Boyle and Huge. Defendant asks this Court to consider prior oral understandings as a defense to a written collective bargaining agreement — an agreement which apparently has been ratified by at least six payments to plaintiff Fund. The case law is clear: Carco’s assertions of misrepresentation and duress are legally insufficient to defeat plaintiffs claims for payment in light of the national labor policy embodied in section 302(c) of the Labor-Management Relations Act, 29 U.S.C. § 186(c).

Accordingly, we find that Careo is barred from proof of its defenses by both the parol evidence rule and national labor policy. Thus, finding no further issues of material fact, we grant summary judgment in favor of plaintiff on its claim for damages.

III. Attorney’s Fees and Interest

When judgment for delinquent employer payments is awarded on behalf of an employee benefit plan, section 1132 of Title 29 provides:

the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent ... of the amount determined by the court under subpar-agraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.

29 U.S.C. § 1132(g) (emphasis added). Thus, attorney’s fees- and double interest are mandatory in the present case where judgment has been awarded on behalf of the plaintiff Fund. Accordingly, we grant plaintiff’s motion on this matter.

      . To the extent Careo also alleges that the strike constituted duress, we find that resolution of this issue is unnecessary to our decision because defendant barred this defense when it ratified the contract by making six payments after its execution. See Boyle v. North Atlantic Coal Corporation, 331 F.Supp. 1107, 1108 (W.D.Pa.1971).

      . The cases defendant cites in opposition are either inapposite or offer scant support for its position: Hamilton Foundry v. International Moulders and Foundry Workers, 193 F.2d 209 (6th Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1060, 96 L.Ed. 1363 (1952), concerns section 158 rather than section 186; the court in Lewis v. Lowry, 322 F.2d 453 (4th Cir.1963), declined to decide whether oral agreements were permissible; and in Lewis v. Coleman, 257 F.Supp. 38 (W.D.Va.1966), the court found the issue of oral understandings unsettled.


author: BRIMMER, District Judge.

text:
    Betty COMPTON, Plaintiff, v. DAVIS OIL COMPANY; HPC, Inc.; Nova Jean Lewis Cecil, Nina Lewis, William A. Lewis, Eve Failor, Lois Lewis Phillips, Cas Lewis, Leta F. Lewis, Anna Louise Lewis Chote, Nettie Ruth Lewis Whittle, Mack R. Lewis, Lark Lewis, Ruth Lewis, Pamela Rae Pierson, Sandra Jo Pierson Heflin and Jerry Heflin, other Unknown Heirs of Davis Lewis, Deceased, Defendants. In the Matter of the ESTATE OF Heirship of Dave LEWIS, Deceased.
    Nos. C83-0238-B, C83-0297.
    United States District Court, D. Wyoming.
    April 29, 1985.

      Earl L. Yeakel III, Stubbeman, McRae, Sealy, Laughlin & Browder, P.C., Austin, Tex., Bruce A. Salzburg, Freudenthal Law Offices, P.C., Cheyenne, Wyo., for plaintiff.
    Thomas D. Roberts, Morgan, Brorby, Price and Roberts, Gillette, Wyo., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRIMMER, District Judge.

This matter came on regularly for hearing by the Court sitting without a jury. Counsel submitted the case for determination upon the pleadings, trial exhibits, the depositions of William A. Lewis, taken October 9, 1984 and Ruth Joyce Lewis, taken September 13, 1984, and the post-trial briefs upon the elements of common-law marriage under the laws of the State of Texas. The Court, being fully advised in the premises, makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

Nettie M. Schofield was born on October 18, 1888 in the State of Minnesota. At age 13, on November 3, 1900, she was ceremonially married to Reverend Lewis Blanchard Johnson, a minister of the United Brethren Church, in Brook Park, Pine County, Minnesota. He was born January 22, 1876 in Scheller, Illinois, had been ordained at age 16, and was twenty-four (24) years old when he married Nettie. Six (6) months later, on May 20, 1901, Nettie gave birth to her only child, Lyle B. Johnson, in the State of Iowa.

Nettie was of the Catholic religion. The varying religious practices of Nettie and Reverend Johnson created constant conflict and turmoil in their relationship. Soon after Lyle was born they moved to Chicago, Illinois, where L.B. Johnson ministered in an Evangelical United Brethren Church. One day, between 1901 and 1907 or 1908, Nettie returned home from a Catholic mass and found that L.B. Johnson had taken Lyle and left her without notice.

L.B. Johnson remarried in 1908 to Doris Margaret Hamilton, who bore him six (6) children and resided with him in Indiana for nearly fifty years until his death. Reverend Johnson suffered from senility for a few years prior to his death, and succumbed from paralysis of the throat at age seventy-seven (77) a few days after he swallowed his bottom denture.

After L.B. Johnson left, Nettie acquired a job in a restaurant as a waitress in order to support herself. It was at this employment, sometime between 1927 and 1929 that she met the decedent, Dave Lewis, who had been born in Tippah County, Mississippi on June 12, 1890, raised with five (5) brothers and a sister in Ryan, Oklahoma, served in the Navy for many years, and was a veteran of World War I. He was a giant of a man, standing over 6' 6" tall. During his tenure in the Navy, Dave was an accomplished wrestler, and was a Navy wrestling champion for more than twelve (12) years. After leaving the Navy, Dave continued to wrestle throughout the country under several aliases, including “Red Devil” and “Killer Jack,” but his most popular nickname, and the one by which he was known to Nettie was “Sailor Jack.”

After leaving the Navy, Dave Lewis, and his brother Lonnie Lewis, with whom he was very close, had homesteaded on adjacent tracts in Campbell County, Wyoming. On November 24, 1926 Patent No. 988516, covering 320 acres in the NE/4, NW/4 of Section 17, T.54N., R.72W., 6th P.M., Campbell County, Wyoming, was issued to Dave Lewis. On November 24, 1926, the same day, “Dave Lewis, a bachelor, mortgagor” executed a mortgage deed covering such property as security for a loan from L.M. Hanson, mortgagee. On December 3, 1927 “Dave Lewis, an unmarried man, mortgagor” executed a second mortgage deed covering the property as security for a loan from J.S. Hunter, mortgagee. The first mortgage deed was executed by Lewis in Campbell County, Wyoming, and the second was executed by him in Coconino County, Arizona. It appears Lewis did not reside in the State of Wyoming following the execution of the first mortgage deed described above.

On September 26, 1929 “Dave Lewis & (Mrs. Nettie Lewis) his wife, grantor” executed a “Warranty Deed with Release of Homestead” conveying property in Campbell County, Wyoming not directly in issue in this proceeding to. L.F. Heydecker, grantee. They executed this deed in Salt Lake City, Utah. The recitations in this deed contain a waiver and release of all homestead rights, and further state, in part, as follows: •

On this 26 day of September, 1929, before me personally appeared Dave Lewis, and Nettie Lewis his wife to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed, including the release and waiver of the right of homestead, and said wife having been "by me first fully apprised of her right and the effect of signing and acknowledging the said instrument....
(notary seal)
/s/ Creighton G. King
Notary Public

Then, on August 11, 1930, “Dave Lewis and Nettie Lewis, husband and wife, grantors” executed a Warranty Deed and Release of Homestead conveying the relevant property to T.L. Platt, grantee, releasing and waiving “all rights under and by virtue of homestead exemption laws of the State of Wyoming” and reserving “all oil, minerals and gas in the above lands” in grantor. This deed was executed by Dave and Nettie in McKinley County, New Mexico. Such instrument contains recitals identical to those set forth above, and bears the signature and seal of Royall S. Smith, Notary Public.

The evidence shows that Dave and Nettie Lewis traveled throughout the United States together between 1929 and 1935 when he was wrestling. They held themselves out and were generally reputed to be, husband and wife. In 1933 or 1934, Dave and Nettie Lewis shared an apartment together in Austin, Texas, on Lavaca Street. While there, they were generally reputed to be married.

On February 26, 1935, Dave Lewis, at age 44, died in Kalispell, Flathead County, Montana, intestate, from a heart attack following a wrestling match that he completed moments before the attack. He owned at death a fee simple interest in the mineral estate described above. His death certificate was witnessed by Lonnie Lewis (or Lon Lewis) and states that Lewis was married at the time of his death. The name of his spouse is omitted, but it is undisputed that the only person to whom Lonnie could reasonably be referring was Nettie.

Dave Lewis was buried in Ralls, Crosby County, Texas, where his parents and various other relatives resided at the time of his death. Nettie Lewis, his brothers, and other relatives attended his funeral. Subsequently Nettie Lewis, on June 11, 1935, filed an application for probate proceedings for Dave Lewis’ Estate in the County Court of Crosby County, Texas, relating only to his personal property, stating that the principal part of the defendant’s personal property consisted of War Risk Insurance granted by the United States of America to the deceased, that the named beneficiary in the policy was his mother, who predeceased him, so that the proceeds thereof reverted to the estate, and that collection of the proceeds under the terms of the policy required administration of the estate. Nettie Lewis was appointed as administratrix of the estate, and letters of administration issued to her on June 26, 1935.' The petition also states that Dave Lewis was a resident of Crosby County, Texas at some point prior to his death.

The estate was never closed. On December 1, 1954 Lonnie Lewis made an application for final settlement of the estate, stating that Nettie Lewis had collected the proceeds of the war-risk insurance policy and that, by the consent of all parties, she was permitted to keep such proceeds. The application also states that no other assets of the estate were discovered. Lonnie Lewis, William Lewis and various other relatives of Dave Lewis knew of the existence of the mineral estate reserved by Dave Lewis at the time of the application to close the estate. In fact, Nettie Lewis had already issued oil and gas leases upon the premises prior to that time. None of the Lewis heirs ever objected to the appointment of Nettie Lewis as Administra-trix of the estate, or to her failure to list the Wyoming property interest; none of them sought to initiate probate proceedings in Wyoming prior to the initiation of this suit; and none of them sought to exercise dominion over such property between 1935 and 1961 during her lifetime. Lonnie Lewis’ application also states that on his information and belief Nettie had remarried, and that her whereabouts were unknown to him. The estate was closed on February 28, 1955.

Following Dave Lewis’ death, Nettie was married, by ceremonial or common-law marriage, to John Brock. After John Brock died, Nettie was married, by ceremonial or common-law marriage, to Bill Jewell some time prior to 1954. On November 17, 1954 “Nettie (Lewis) Jewell” issued two (2) oil and gas leases covering all or part of the mineral estate described above. On January 23, 1958 “Nettie Lewis Jewell and J.W. Jewell” executed another oil and gas lease covering the same property. Finally, on April 4, 1961 “Nettie Lewis Jewell, formerly Nettie Lewis, a widow” executed another oil and gas lease upon the premises. Throughout her lifetime Nettie Lewis exercised sole and exclusive dominion and control over the mineral estate without objection by the Lewis heirs.

Nettie was reunited with her only son sometime in the 1950’s. She died testate following a prolonged illness in Denver City, Yoakum County, Texas at age 73 on May 4, 1961. She was predeceased by J.W. Jewell. Her property was distributed under the terms of a written will to her only son, Lyle B. Johnson, and three surviving children of J.W. Jewell, but the mineral estate was devised solely to Lyle. The will states that Nettie was never divorced, and scratches out the term “Christian” replacing it with “catholic”, requesting a “catholic burial” “in keeping with the stations of my life.” Her death certificate states her occupation was “Housewife” and that she was widowed. Her estate was closed May 21, 1962.

Lyle B. Johnson died testate in Mt. Car-mel, Wabash County, Illinois on August 30, 1967 at age 66 following a heart attack. He was widowed at the time of his death. Probate proceedings were commenced by his daughter, Betty Lou Compton, formerly Betty Lou Pierson, the plaintiff, on February 22, 1968. Lyle Johnson’s will gave all of his personal property to plaintiff, and devised the relevant mineral estate to his granddaughters, Sandra Jo Pierson and Pamela Rae Pierson. The total value of Lyle’s estate at the time of his death was under $2,000 and summary proceedings were held since no administration was required under Illinois law.

On February 26,1968 plaintiff, with Sandra Jo Pierson and Pamela Rae Pierson, (a minor) executed an oil and gas lease covering the mineral estate described above. Then on May 15, 1971 plaintiff, her husband Herbert D. Compton, Sandra Jo Pier-son and Wyoming National Bank of Casper as Guardian for the Estate of Pamela Rae Pierson, a minor, executed a ratification and Rental Division Order relating to the leases held by the Davis Oil Company upon the relevant mineral estate. Between February 22, 1968 and February of 1972 plaintiff, her husband and two daughters exercised sole and exclusive dominion and control over the mineral estate without objection by the Lewis heirs.

Then, on May 15, 1972, approximately 11 years after Nettie Lewis’ death, and approximately 37 years after Dave Lewis’ death, Ann Chote executed and filed an heirship affidavit stating Dave Lewis was never married, that Nettie Lewis was not his wife, and that title to the mineral estate passed by intestate succession to his brothers and sister at the time of his death. Commencing in February of 1972 the Lewis heirs began to execute oil and gas leases upon the mineral estate in derogation of the interests claimed by the heirs of Nettie Lewis. The last relevant transaction occurred on December 6, 1984 when Sandra Jo Pierson Heflin and Jerry Wayne Heflin, husband and wife, and Pamela Rae Pier-son, a single woman, executed a quit claim deed conveying any interest they might have in the mineral estate to plaintiff.

The value of the mineral estate at the time of Dave’s death was under $2,400. Subsequently, a producing oil well was drilled on the premises by Davis Oil Company. The value of production from the well was estimated at $354,999.20, and over $52,000 in royalties and accrued interest are deposited in the registry of the Court pending resolution of the competing claims of the parties. When the cost of production exceeded revenues the producing well was shut in, and the leases in question lapsed. The estimated current value of the estate is $20 per acre, or $8,200.00. The proper distribution of the royalties, and the right of the parties to engage in future leasing activities upon the premises depends upon the Court’s determination of the issues presented in this quiet title action.

It is undisputed that Dave Lewis died intestate on February 26, 1935, and that he owned a fee simple interest in the relevant mineral estate at the time of his death. Assuming he was married to Nettie Lewis, the estate passed to her by intestate succession, and title is in plaintiff. But, if Dave and Nettie Lewis were not married at the time of his death, the property would have passed to his sister and five brothers, and title to the property would not be jointly held as follows:

Telia Lewis Greer. 4/24 .
Hardy L. Lewis . 4/24
William A. Lewis . 4/24
Ona Lewis . 4/24
Cas Lewis. 2/24
Lois Phillips . 2/24
Anna Louise Lewis Chote. 1/24
Nettie Ruth Lewis Whittle. 1/24
Lark Lewis. 1/24
Mack lewis . 1/24
Total: 24/24

The central factual issue to be decided in this action is whether Nettie Schofield Lewis was lawfully married to Dave Lewis at the time of his death on February 26, 1935.

Defendants rely primarily upon the oral testimony of William A. Lewis and Ruth Joyce Lewis in support of their contention that Dave and Nettie Lewis were never married. William A. Lewis is Dave Lewis’ sole surviving sibling. He was born on August 2, 1908, approximately 18 years after Dave was born. In his testimony he states that he was raised after Dave Lewis was grown, that he only met him on a few occasions, and did not correspond with him frequently. His testimony indicates that the Lewis family liked Nettie Lewis, and treated her as if she were Dave’s wife throughout their lives. The Lewis heirs referred to her as “Aunt Nettie”, and Bed-ford Lewis, one of Dave’s brothers, named one of his daughters, Nettie Ruth Lewis Whittle, after Nettie because he was so fond of her. Nettie was described by the Lewis heirs as a “glamorous” woman, and Ruth Lewis testified that Nettie reminded her of Sylvia Sidney.

William Lewis only met Nettie on two occasions, when Nettie and Dave Lewis resided in Austin, Texas for a short time period when William was attending the University of Texas there, and a second time at Dave Lewis’ funeral. William testified that he did not know Nettie’s last name, which was Lewis at the time, until after Dave’s death. He admits that he never discussed the nature of their relationship with Dave or Nettie, that he did not know how long they were together, and that he does not know whether or not Dave was ever married during his lifetime. William remembers no specific conversations concerning Dave and Nettie’s relationship during Dave’s lifetime, but states that sometime after Dave’s death it became “common knowledge” within the Lewis family that Nettie had previously been married, that she never divorced her first husband, and that she was not married to Dave. William does not remember the exact source of this information, and testified that Lonnie, Bedford and Hardy (other brothers of Dave all of whom are now deceased) all knew more about this than he did since the issue was never discussed with him. This “common knowledge” is contrary to the contemporaneous statements made by Lonnie Lewis at the time of Dave’s death as set forth in Dave’s death certificate. Furthermore, William admits that he does not remember the specific context in which he learned this information, remembers no specific, conversations in which it was discussed, and by his own admission has forgotten specific details concerning events which transpired as much as fifty years before his deposition was taken. Even the details he remembers appear to be somewhat confused due to the passage of time. For example, he testified that Dave’s mother and father both were alive at the time of Dave’s death though the application for probate proceedings filed contemporaneously with the events in question by Nettie states that Dave’s mother predeceased Dave.

However, William does remember that Dave and Nettie had a “real tiff” during the time they resided together in Austin, and testified that Dave walked out of their apartment and was “huffy” and “mad” and said he was not “tied to” Nettie and that he would “get rid of her.” However, it is undisputed that Dave did not “get rid of” Nettie, and remained with her for the remainder of his life.

Ruth Joyce Lewis was married to Forrest Lewis, who was Dave’s nephew through Bedford Lewis. She was born July 7, 1929 and never met Dave Lewis. Ruth met Nettie in the late 1930’s when Nettie rented an apartment from Ruth’s mother, Ora J. Raymond, in Crosbyton, Texas. At that time Nettie was referred to as Nettie Brock or Mrs. Brock. Ruth knew Nettie was Catholic because Nettie gave Ruth a crucifix when she was a young girl, but Ruth’s mother made her return the crucifix because they were of the Baptist faith.

Ruth Lewis also testified that sometime after 1945 it was “common knowledge” within the Lewis family that Nettie had previously been married, had never sought a divorce because she was a Catholic, but was not married to Dave Lewis during the time period they cohabited. Ruth Lewis further testified that sometime in 1957, over twenty-five years prior to the time the deposition was taken, Nettie went to visit Bedford Lewis in a hospital in Amarillo, Texas when Bedford had an operation and was in the intensive care unit. Ruth stated that she and Nettie were sitting alone together in a lounge waiting to visit Bedford when Nettie told Ruth her life story. Ruth testified that Nettie stated she had never divorced her first husband, and said that after she was left alone, she “took up” with Dave Lewis, and after he died she “took up with” John Brock, and after he died she “took up with” J.W. Jewell. Ruth testified that Nettie never used the term “marriage” concerning any of these relationships.

However, the evidence does show that Nettie made representations to the effect that she had been married to Dave Lewis over a period of forty years from 1929 to less than a month before her death in 1961. Nettie Lewis did not unequivocally state that she had never married Dave Lewis, or John Brock, or J.W. Jewell, nor did she ever state that she was never divorced by L.B. Johnson. Any restrictions imposed upon her due to her faith would not have bound L.B. Johnson, and would not have precluded him from divorcing Nettie. The inference that defendants’ seek to draw from the conversation with Ruth Lewis is untenable. The argument is that Nettie, due to religious convictions, felt she could not divorce or remarry and chose to live with a series of three men, outside of the bonds of marriage, for a period of nearly forty years. That conclusion is contrary to the weight of the other evidence submitted to the Court.

CONCLUSIONS OF LAW AND JUDGMENT

The Court has jurisdiction over the parties and the subject matter of this proceeding under 28 U.S.C. § 1332, and venue is properly in the United States District Court for the District of Wyoming. A United States District Court may decide the issues presented in a quiet title action, though its rulings collaterally affect probate proceedings because it determines heirship and entitlement to the decedent’s estate. Harris v. Pollock, 480 F.2d 42 (10th Cir.1973); Turton v. Turton, 644 F.2d 344, 347 (5th Cir.1981); Rice v. Rice Foundation, 610 F.2d 471, 475 (7th Cir.1979); O’Connor v. Slaker, 22 F.2d 147 (8th Cir.1927).

Once the existence of a marriage is established, a strong, though rebuttable, presumption arises that such marriage is valid. The burden is on the challenging party to show invalidity by clear and convincing evidence. In re St. Clair’s Estate, 28 P.2d 894, 897 (Wyo.1934); In re Kiesel’s Estate, 249 P. 81 (Wyo.1926); Jim’s Water Service v. Eayrs, 590 P.2d 1346 (Wyo.1979); Sy Joc Lieng v. Sy Quia, 228 U.S. 335, 33 S.Ct. 514, 57 L.Ed. 862 (1913). Where the evidence shows a person was married once, and subsequently married a second time, the presumption of validity attaches to the second marriage, and the law presumes that any incapacity resulting from the first marriage was removed by divorce or death prior to the second marriage. In re St. Clair’s Estate, supra; In re Kiesel’s Estate, supra; Metropolitan Life Insurance Co. v. Manning, 568 F.2d 922 (2nd Cir.1977). This presumption increases in strength as time passes. It can be overcome only upon a showing, by clear and convincing evidence, that neither party to the initial marriage obtained a divorce. Id.; Panzer v. Panzer, 87 N.M. 29, 528 P.2d 888 (1974); Matter of Estate of Steinberg, 34 Or.App. 293, 578 P.2d 487 (1978); Texas Employer’s Insurance Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371 (1955); Winn v. Wiggins, 47 N.J.Super. 215, 135 A.2d 673 (1957); Hill v. Shreve, 448 P.2d 848 (Okla.1968). After the lapse of a great many years the presumption is especially strong since public policy favors reliance upon the validity of matrimonial relationships. Id.

The evidence clearly establishes that L.B. Johnson married Doris Margaret Hamilton in 1908. We presume that marriage, which produced six children, was valid. If it was valid, then there was no legal impediment to the remarriage of Nettie to Dave Lewis.

Direct, reliable evidence also establishes that Dave and Nettie Lewis were married, and were husband and wife until Dave’s death in 1935. That evidence consisted of the recitals in the two warranty deeds executed by Dave and Nettie as husband and wife, and the statements made by Lonnie Lewis contained in Dave Lewis’ death certificate concerning Dave’s marital status. Recitals contained in ancient documents, and in documents and records affecting interests in property are admissible as proof of the matters asserted, and constitute strong evidence concerning such matters. ' Fed.R.Evid. 803(14), (15), and (16). The Court is also persuaded by the fact that the conduct of the Lewis heirs over the course of many years prior to 1972 was fully consistent with the recitals in such instruments.

Statements in such ancient documents are admissible due to a rule of necessity as well as to the reliability of such evidence in comparison to any other form of available evidence. Louisell and Mueller, Federal Evidence, vol. 2 § 464 (1972); J. Moore, Moores Federal Practice, vol. 11 § 803(16) (2nd ed. 1976 and 1982 Supp.); Wickes, Ancient Documents and Hearsay, 8 Tex.L.Rev. 451, 461-464 and n. 25 (1930). McCormick, Evidence, § 298 (1954), § 323 (2d ed. 1972); 5 Wigmore, Evidence § 1573a (Charbourn rev. 1974). Generally the declarant in such documents is not available to testify due to death, and even if not deceased, the declarant is practicably unavailable because of the inevitable loss of memory and confusion resulting from the passage of time. Generally, there will also be a scarcity of other available evidence probative of the matter asserted. Due to the lapse of time the rule reduces the preference for live testimony implicit in the hearsay rule. Eyewitness accounts of such events are likely to be less reliable than contemporaneous statements recorded in the ancient documents. Louisell and Mueller, Federal Evidence, supra § 464.

In addition, recitations in ancient documents remove the risks of error in transmission of information by oral statements. This consideration is especially important where the passage of time tolls the memory and removes the statements from the context in which they were made. Also, such evidence is less likely to be affected by the forces generated by the litigation since they are made in a context where there is less reason to fear a lack of candor, distortion, whether conscious or unconscious, or even deliberate falsehood affected the statements made. Id.; United States v. School Dist. of Ferndale, 577 F.2d 1339, 1355 n. 26, 47 A.L.R.Fed. 294, (6th Cir.), on remand 460 F.Supp. 352 (E.D.Mich.1978); United States v. 1078.27 Acres of Land Situated in Galveston Co., Texas, 446 F.2d 1030, 1033-34 (5th Cir.) cert. denied sub nom Galveston City Co. v. United States, 405 U.S. 936, 92 S.Ct. 945, 30 L.Ed.2d 811 (1972).

Similarly, the exception to the hearsay rule concerning records and instruments affecting interests in property is based upon the reliability of such documents. Louisell and Mueller, Federal Evidence, supra § 463; J. Moore, Moores Federal Practice, supra vol. 11 § 803(15); Conn. Light & Power Co. v. Federal Power Com’n, 557 F.2d 349, 354-56 (2nd Cir.1977). Such instruments are executed in relation to serious and carefully planned transactions, and the financial stake in the transaction, plus the obvious reliance upon the truth of statements made in such instruments by third parties are adequate to at least imply that the recitals in such instruments are trustworthy. Id. The rule states that subsequent dealings inconsistent with the truth of the statements or purport of the document undermine the presumption of reliability. Id. Fed.R.Evid. 803(15). Here the Lewis heirs, with full knowledge of the existence of the mineral estate, acted as if title to the property was in Nettie Lewis and her heirs between 1935 and 1972, a period of 37 years. They failed to assert any objection to her exercise of dominion over the property, and they did not attempt to exercise any dominion over the property on their own behalf until over a decade after Nettie’s death.

Unambiguous statements set forth in public records and made contemporaneously with the events at issue circumstantially establish that Nettie Lewis and Dave Lewis were husband and wife at least as early as 1929, and remained in that capacity until the time of his death in 1935. Defendant’s evidence is inadequate to overcome plaintiff’s compelling proof, and fails to persuade the Court that the statements made by Dave Lewis, Nettie Lewis and Lonnie Lewis concerning the marriage relationship were false. At best defendants’ evidence indicates that Nettie never divorced L.B. Johnson prior to entering her marriage relationship with Dave Lewis. While such failure would, under other circumstances, affect her capacity to enter a second marriage, the evidence and the presumptions of law establish that this impediment was removed by L.B. Johnson sometime before 1908, nearly 20 years before Nettie met Dave in Chicago. The Court concludes that the second marriage of Nettie Lewis to Dave Lewis was lawful and valid.

Even assuming plaintiff’s evidence failed to establish the existence of a ceremonial marriage between Nettie and Dave Lewis, still the proof shows a common-law marriage under the laws of the State of Texas. Wyoming does not recognize common-law marriages. Kinnison v. Kinnison, 627 P.2d 594 (Wyo.1981); In re Reeves Estate, 58 Wyo. 432, 133 P.2d 503 (1943); In re Roberts Estate, 58 Wyo. 438, 133 P.2d 492 (1943). However, Wyoming will recognize a common-law marriage established under the laws of another jurisdiction, and gives such marriage the same binding effect it would have in the state in which it was consummated. Jim’s Water Service v. Eayrs, supra; Bowers v. Wyoming State Treasurer, ex. rel. Workmen’s Comp. Div., 593 P.2d 182 (Wyo.1979); W.S. § 20-11-111 (1977).

The elements necessary to show the existence of a common-law marriage in Texas are as follows: (A) An agreement to marry or be married; followed by (B) cohabitation; ánd (C) holding out, or representations to others by the couple that they are husband and wife. Texas Family Code Annotated § 1.91 (Vernon 1975); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955). A common-law marriage may be established by circumstantial evidence, and cohabitation combined with holding out or representations to others by the couple that they are husband and wife gives rise to a rebuttable presumption that there was an agreement to be married. Texas Family Code Annotated § 1.91(b) (Vernon 1975). Collora v. Navarro, 574 S.W.2d 65 (Tex.1978); Persons v. Persons, 666 S.W.2d 560 (Tex.App. 1 Dist.1984); Hill v. Smith, 181 S.W.2d 1015 (Tex.Civ.App.1944); Humble Oil & Refining Co. v. Jeffrey, 38 S.W.2d 374 (Tex.Civ.App.1931), aff'd 55 S.W.2d 521 (Tex.1932); Texas Employers’ Insurance Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371, 373 (1955). The strength of this presumption, as with the presumption concerning the validity of the marriages, increases in strength with the passing of time. United States Fidelity & Guaranty Co. v. Dawdle, 269 S.W. 119, 124, 126 (Tex.Civ.App.1924); Salvini v. Salvini, 2 S.W.2d 963, 965 (Tex.Civ.App.1928).

Where, as here, a deed was executed by the couple as husband and wife, containing recitals stating the homestead rights of the grantor’s wife were released, and that the spouse was separately examined and the effect of the instrument was explained to her, this conduct is direct evidence of the existence of a common-law marriage since it indicates there was a representation to third parties, and a holding out by the couple, that they were married, and that there was an agreement to be married. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex.1981); Persons v. Persons, supra.

Under Texas law, when a couple agrees to marry or be married in another jurisdiction not recognizing common-law marriage, and subsequently acquires a Texas domicile or residence, their common-law marriage will be recognized in Texas on evidence of a continuing cohabitation with matrimonial intent and a public holding out. See generally 0. Speer and L. Simkins, Texas Family Law, §§ 2.8 and 2.19 (5th ed. 1977); Persons v. Persons, supra; In re Bivian’s Estate, 98 N.M. 722, 652 P.2d 744 (App.1982). Declarations of relatives concerning the marital status of the couple made before the controversy arose and introduced into evidence after the death of the declarant, such as those made by Lonnie Lewis as stated in Dave Lewis’ death certificate, are competent evidence to prove the existence of a common-law marriage. Summerhill v. Darrow, 94 Tex. 71, 57 S.W. 942 (1900).

The evidence establishes cohabitation in Austin, Texas, substantial contacts with the state, and that there may have been cohabitation at other times in Texas as well. The evidence, with its reasonable inferences, establishes representations to third parties by Dave and Nettie Lewis that they were husband and wife, and a general reputation as being husband and wife in the communities in which they resided. Their conduct in New Mexico, Utah, Montana and elsewhere would presumably continue in Texas in the absence of a contrary showing. Any contrary representations by Dave Lewis in a fit of emotion to a limited audience is inadequate to overcome the clear inference from the evidence that Dave and Nettie by word and by conduct represented themselves to be husband and wife throughout their years together. Defendant’s evidence was inadequate to overcome this presumption, or the direct proof submitted by plaintiff. The subsequent cohabitation in Texas by Dave and Nettie was all that was required to complete the common-law marriage under the standards discussed above.

Defendants failed to offer any probative evidence concerning the alleged invalidity of such marriage, and did not sustain their burden of proving invalidity by clear and convincing evidence. Defendants were handicapped in proving their case due to the passage of time and the transitory lifestyles of the relevant parties, but that wound was self-inflicted. The Lewis heirs could have objected to Nettie’s conduct in probating Dave’s estate as early as 1935, could have asserted claims to the mineral estate and could have initiated probate proceedings in the State of Wyoming any time after 1935 and before Nettie’s death in 1961. Although they allege that they knew of the absence of a matrimonial relationship as early as 1935, they waited until after the death of the person in the best position to testify as to these matters, Nettie Lewis, before they asserted their claims. She might have known where to find the marriage and divorce records which counsel have been unable to locate.

The remaining question is whether defendants are entitled to a fractional share of the mineral estate under Wyoming’s inheritance laws. The intestate succession provisions in effect at the time of Dave’s death were contained in R.S. § 88-4001 (Wyo.1931), which stated, in relevant part, as follows:

.... If such intestate leaves husband or wife and no child nor descendants of any child, then the real and personal estate of such intestate shall descend as follows, to wit: all of said estate up to the sum of twenty thousand dollars ... shall descend and vest in the surviving ... wife, and the balance of such estate over and above the sum of twenty thousand dollars, ... shall descend as follows, to wit: Three-fourths thereof to such surviving ... wife, and one-fourth thereof ... if both parents be dead, to the brothers and sisters, and to the descendants of brothers and sisters (the descendants, collectively, taking the share which their parents would have taken if living), in equal parts.

These provisions continue in effect today, without substantive change. W.S. § 2-4-101 (1977). Defendants allege the valuation of the property should be determined at this time for purposes of deciding whether there would be any amounts over $20,-000.00 which would pass, in part, to the Lewis heirs. However, rights of inheritance vest immediately upon the death of the intestate, and any devolutionary rights must be determined as of that date. In re Estate of Randall, 506 P.2d 432 (Wyo.1973). Defendants concede the value of the mineral estate was well under $20,-000.00 at the time of Dave Lewis’ death, and in fact continued to be below that level until recently. The Court concludes that upon the death of Dave Lewis, title to the entire mineral estate passed to Nettie Lewis, and that title is presently in the plaintiff, and should be quieted in her. Therefore, it is

ORDERED and DECREED that title to the mineral estate underlying the NE/4 of Section 17, T.54N., R.72 W., 6th P.M., be, and the same hereby is, quieted in plaintiff; It is further

ORDERED that the Clerk of Court should deliver the royalty payments heretofore paid by Davis Oil Company into the registry of the Court, together with accrued interest thereon to plaintiff, and that plaintiff recover of defendants her cost of action. It is further

ORDERED, DECREED and ENJOINED that defendants should forthwith cease leasing, activity, and should refrain from any other activities relating to said mineral estate in derogation of the plaintiff’s title thereto.