29 Kan. 283 | Kan. | 1883
The opinion of the court was delivered by
Defendants in error are the parents of one D. P. Baughman, deceased. As parents they claim to be his sole heirs. Plaintiff in error, defendant below, claims to have been the wife, and to be the widow of said D. P. Baughman, and therefore, there being no children, the sole heir. The single issue presented is, whether plaintiff in error was legally,married to said D. P. Baughman, and therefore, as his widow, legally entitled to inherit his property. In support of her claim to the fact of the legal marriage, and that she was the widow of the said D. P. Baughman, she offered her own testimony and the .testimony of two other witnesses, that they were present at Eureka Springs, Arkansas, and witnessed the marriage ceremony between herself and deceased. All this evidence was rejected, the court holding, that record evidence was essential to prove the fact of marriage. In this we think the court erred. The laws of the state of Arkansas, in which this marriage is claimed to have been made, are not before us. We may not presume them different from the common law, or different from our own statutes. (French v. Pease, 10 Kas. 54; Furrow v. Chapin, 13 Kas. 113; Railway Co. v. Cutter, 16 Kas. 571.) Under our own laws and under the common law, the fact of marriage is provable, not alone by record evidence, but by the testimony of those who were present and witnessed the ceremony. (Wolverton v. The State, 16 Ohio, 173.) In this case, the court says: “Upon this theory it w;ould follow that the marriage could not be proved by a person present at the ceremony, and yet such proof is always admissible.” In 1 Bishop on Marriage and Divorce, §494, it.is said: “Anyone who is present at the marriage may be witness to prove the fact. Proof by witnesses present
The judgment of the district court will be reversed, and the ease remanded for a new trial.