This case requires a reversal because of the commission of certain errors, which caused the trial court to misapprehend the legal effect of all the evidence. Lambrose v. Topham, Fla. 1951, 55 So.2d 557. The primary error was that the appellant was burdened with proving her marriage; secondarily, the court did not give evidence of habit (sometimes called cohabitation) its proper weight. The plaintiff-appellant, of course, was required to establish a prima facie common law marriage.

Shortly after the alleged marriage the parties purchased a lady's diamond ring, valued at $5,000, and a lady's wedding ring of the approximate value of $500, and they were worn by the petitioner during the time she and the respondent lived and cohabited together. In Lambrose v. Topham, Fla., 55 So.2d 557, this Court held that a prima facie case of a common law marriage had been established and that the burden then shifted and that the Court below applied the wrong rule in holding that there was no common law marriage. See also Spinella v. Spinella, Fla., 57 So.2d 588.

The appeal was from a decree for temporary alimony pendente lite until further order of the court, and, as the opinion shows, the appellate court determined for the purpose of that appeal that there was no basis for the decree pendente lite. It is interesting to note that in Lambrose v. Topham, et al., Fla., 55 So.2d 557, 558, the Supreme Court clearly laid down the rule that, while it is true that one claiming a common law marriage has the burden of establishing a prima facie case, "It is well established in this state that the person who asserts the illegality of a marriage must assume the burden of proof of the assertion". It is interesting to note also that in Fincher v. Fincher, Fla., 55 So.2d 800, 801, an appeal as Marsicano's was from an interlocutory order, requiring petitioner to pay certain sums for alimony and attorney's fees pendente lite, a divided court citing the Marsicano case, reversed the order and took it upon itself to outline for the benefit of the bench and bar the procedure which should be followed when a complaint alleging a common law marriage and seeking alimony and attorney's fees pendente lite is filed and its allegations are denied by the defendant.

According to Florida law, the burden of establishing a prima facie case of common-law marriage is on the one asserting the matrimonial relationship ( Matter of Alcala, 188 So.2d 903 [Fla.]; Matter of Beacher, 177 So.2d 838 [Fla.]; Lambrose v. Topham, 55 So.2d 557 [Fla.]), and in establishing the prima facie case, the best evidence is the testimony of the contracting parties or of those present that there was an agreement, per verba de praesenti ( Van Derven v. Van Derven, 105 So.2d 805 [Fla.]; Le Blanc v. Yawn, 99 Fla. 328). While such testimony is the best evidence, it is not the only way to prove a common-law marriage.

The proper test is whether or not in adopting the master's report the chancellor misapprehended the legal effect of the evidence as a whole. Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 146 So. 668; Lambrose v. Topham, Fla., 55 So.2d 557; In re Thompson's Estate, 145 Fla. 42, 199 So. 352. There was conflicting evidence but when considered in its entirety, the chancellor had substantial credible evidence as basis for his decree. Even if the master was confronted with a false premise, it is not shown that he misapprehended the legal effect of the evidence as a whole.

He who asserts the illegality of a marriage must assume the burden of proving his assertion. Lambrose v. Topham, Fla., 55 So.2d 557. It appears that the County Judge fully appreciated the contentions made by the parties, the effect of the evidence, and properly applied the rules of evidence.

The Final Decree of the Circuit Judge, acting as County Judge, shows on its face that although the evidence was conflicting, he found that the preponderance of the evidence supported his conclusions, and he applied the rule that the burden of proof was upon those attacking the Probate of the Will. The case of Lambrose v. Topham, Fla., 55 So.2d 557, has been cited by the appellants in support of their position. In the Lambrose case the record shows that the County Judge had applied an incorrect rule of law to the evidence in a common-law marriage case, and it has no bearing upon this case.

In this case the burden was upon the appellee to establish a prima facie common-law marriage, and had she done this, the burden would have shifted to the appellant to prove the illegality of such common-law marriage. Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789; Lambrose v. Topham, Fla., 55 So.2d 557. In the case of Lambrose v. Topham, supra, there was direct and positive testimony that the parties mutually agreed to presently become husband and wife.

Further, where the probate court has misinterpreted the legal effect of the evidence in its entirety, its findings will not be affirmed merely because there is evidence that is contradicted on which the findings may be predicated. See Lambrose v. Topham, 55 So.2d 557, 558 (Fla. 1951) (citing Hooper v. Stokes, 145 So. 855, 857, 107 Fla. 607, 610 (1933)). Any rule to the contrary would render a probate court's finding of testamentary capacity virtually unassailable on appeal.

"No rule of law is better settled than that which requires that he who asserts the illegality of a marriage must assume the burden of proving his assertion." Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789. And see Lambrose v. Topham, Fla. 1952, 55 So.2d 557; In re Colson's Estate, Fla. 1954, 72 So.2d 57, 59. At the start of the hearing the following appeared: "Mr. Gould: Your Honor ruled at our first preliminary hearing that the burden of proof would be on the Administratrix to establish the common-law marriage.