52 N.J. Eq. 650 | New York Court of Chancery | 1894
This case presents but a single question, and that is, is the defendant the husband of thé complainant ? The suit is founded on the twentieth section of our statute concerning divorces, and is brought for the purpose of obtaining a decree compelling the defendant to support the complainant. The defendant denies that he ever, in any way or form, entered into a contract of marriage with the complainant. His defence confesses necessarily
The contract, on which the complainant rests her right to relief, is alleged to have been made in the city of New York, on the 29th day of May, 1889, at a house near- one of the entrances to Central Park. For nearly a year prior to the date just mentioned, the complainant had lived with the defendant’s father in the village of Lebanon, Hunterdon county, as his housekeeper. The father at this time was about ninety years old, and • his family consisted of nobody but the complainant and himself. The defendant, at the time of the alleged marriage, was a widower, about fifty years old, and the father of three children, and had for several years resided in the city of New York, ■where he was engaged in the business of selling liquors and groceries, by traveling over certain routes, extending through the country adjacent to the city, at stated intervals, to solicit orders. While passing over one of these routes, it was his custom to stop at his father’s house at Lebanon and remain there over night. He did so usually once in each fortnight throughout the year. The complainant went to live with the defendant’s father in July, 1888, and the defendant made her acquaintance there shortly afterwards. She was then a maiden about twenty-six years old. Soon after they became acquainted, the complainant testifies that the defendant made love to her and asked her to marry him. He admits that he kissed her, romped with her, brought her flowers and gave her a silk umbrella. The complainant says that the defendant repeatedly asked her to marry him, but that she did not consent until March, 1889. Then she says he said to her that he loved her so deeply he could not live without her, and asked her if she loved anybody else, and that she replied that she did not, but confessed that she loved him, and promised that she would marry him, but stated that she could not then because she was not ready. The defendant had a brother living in Paterson. A few days before the day on which it is alleged the marriage took place, the complainant went with Austin Clark (the defendant’s father) to Paterson
The contract on which the complainant rests his right to relief was made in the State of New York, and its validity must, consequently, be determined by the law- of that state. If valid there it must be held to be valid here. Now, there can be no doubt that, if the parties made promises to each other in the manner and of the kind sworn to by the complainant, according to the law of New York they became, by force of such promises, eo instante, husband and wife. And this would be the legal ■effect of an exchange of such promises, whether they were ■exchanged in the presence of a witness possessing neither civil nor ecclesiastical authority, or in the absence of any witness whatever. By the law of New York, marriage is a civil contract. No solemnization by priest or magistrate is required; nor is the presence of a witness necessary. Consent is the only requisite; and when a man and woman capable of making such a contract ■exchange promises by which they take’ each other, from the instant the promises are made, as husband and wife, they become at once husband and wife by as valid a contract as they can make. And the making and existence of such a contract may, like any other fact, be established by any kind of proof which the law recognizes as legal evidence. "While the law, as thus ■stated, has been declared in many cases, but two quotations will be made. The first is from the opinion of Judge Folger, in Brinkley v. Brinkley, 50 N. Y. 184, 197, where he said: “ The law is well settled that a man and woman, without the presence
of a marriage contract is a fact which may be proved, like any other fact, either by positive evidence or by evidence from which it may be inferred.” Like views have been expressed in many other cases. In addition to the two already mentioned, four only will be cited. Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47; Canjolle v. Ferrie, 23 N. Y. 90; Gall v. Gall, 114 N. Y. 109.
~We come now to the question on which the decision of the case must turn, namely, is the defendant the husband of the complainant ? Or, stated in another form, has the marriage, on which the complainant’s action rests, been satisfactorily proved ? The burden is on the complainant. Unless the case contains sufficient evidence to produce a clear conviction in the mind of the court that the parties entered into a contract of marriage in the city of New York, on the 29th day of May, 1889, no relief can be awarded to the complainant. The person in whose presence the complainant says the mutual promises were made has not been examined as a witness; The complainant and her counsel, after extended inquiry and diligent search, have been unable to find him or discover the least trace of him. Hor has the complainant been able to identify the house into which she says the defendant took her when they came out of the park. Her inability to remember the house with sufficient clearness to be able, after the lapse of two or three years, to point it out, does not appear to me to be either unnatural or improbable. She was born in a rural country and had lived there all her life.
The case, in respect to its vital fact, being destitute of other proof than that furnished by the oaths of the parties, it is clear that the complainant cannot prevail unless her evidence in proof of that fact has been so strongly corroborated, or the evidence of the defendant, as to material facts, has been so effectually impeached, as to convince the court that her evidence as to that fact is true and his is false. The conclusion I have reached is that her evidence as to the fact of marriage is true and his is false. That was my impression when the proofs were closed. Since then the argument of counsel and a full and careful consideration of the evidence have resulted in changing what was then but an unsettled and untested belief into a strong conviction.
There was a marked difference in the demeanor of the parties while testifying. The complainant’s demeanor was that of an honest witness, who felt that she was under a supreme obligation to tell the truth regardless of consequences. She gave her evidence with apparent candor, without any attempt at evasion, and never hesitated to testify to the truth because she thought it might hurt her case or lay the foundation for a contradiction. The defendant, on the contrary, testified with a languid, weary air, as though it were an irksome and disagreeable task for him to try to recall that part of his life which had been associated with the complainant. He hesitated when there- was no apparent reason for hesitation. Some of his answers were so im
The truth of the complainant’s evidence as to the fact of marriage is confirmed by a written admission made by the defendant with deliberation. In October, 1891, about a month before the birth of the child, the defendant wrote a letter to the complainant and sent it to her by mail, addressed as follows: “ Mrs. Lucy Clark, care Austin Clark, Lebanon, H. J.” The envelope is in evidence, and the fact that it was addressed in the
The defendant, in attempting to explain how it happened that 'he addressed this letter to the complainant as his wife, manifested :great confusion of recollection. He first said that he was induced .to address this letter in -the way he did by a letter which the ■complainant had written to him and which he had destroyed. He also said that it was his custom to destroy all personal letters soon after reading them. He then gave the contents of this particular letter, repeating the words in which the complainant had made the request, and also the reason she had given for making it. On his cross-examination his attention was called .fo the fact that in his affidavit, read on an application for alimony, he had sworn that the complainant’s request had been •made verbally, at his store in Hudson street, in the city of New York, and not by'letter, and was then asked which statement was true. He answered that the request was made either by letter or verbally, and that if his affidavit stated that it had been made verbally, that “ that must be the correct solution of the matter.” On further cross-examination he said that his recollection about the matter was indefinite, and that he could not swear either way whether the request had been made verbally or by letter. And yet, when this request and his act in pursuance
Nor can I believe that the reason which the defendant gives for addressing this letter to the complainant as his wife, is the •one which actually existed in his mind when he wrote the letter and guided his hand in directing it. He says he did it without .any thought of the consequences, and simply with a desire to do what the complainant wanted him to do. He further said that when the complainant requested him to address her as his wife, ¡•she informed him that she had told her parents and friends that he and she were married, and then said that she wanted to keep her reputation, but could not do so unless he addressed her as his wife. After making this statement, this question was put to ’.him, “ Then you were willing to address her in this way, so that her parents and friends would think that you were married ? ” His answer was: “ I was willing to do anything to aid her; I didn’t care how I addressed her; I was willing to do anything that would satisfy her.” Now, in deciding whether the least credit can be given to this evidence, it is necessary to observe that when the complainant informed the defendant that she had •told her parents that he and she were married, he does not pretend that he accused her of falsehood, or that he said anything which indicated that he disputed the truth of the statement she had made to her parents, or that he was dissatisfied with or disapproved of what she had done. And in this connection it is
But, again, in testing the truthfulness of the defendant’s evidence on the point under consideration, it is necessary to call attention to the fact that his description of the complainant’s-conduct and of the relations which had existed between them for years prior to the time when she requested him to recognize her as his wife, render it almost absolutely certain, if the complainant was as lewd and abandoned as he says she was, and he was as free from the least duty or obligation to her as he says he was, that unless he differs widely from other men of ordinary sense and prudence, it would have required something much more persuasive and powerful than a mere desire to aid or satisfy her, to induce him to do anything which would enable her to prove that a falsehood which she had circulated against him was the' truth. He swore that the complainant and he had their first-sexual intercourse in open daylight, in his father’s house, within two or three months after he made her acquaintance, and that the complainant’s conduct on that occasion was so immodest and dissolute as to be equivalent to a shameless solicitation to him to-seize her person and use it; that from that time forth they had sexual intercourse whenever he was at his father’s house, without any talk about marriage or thought of, marriage on his part, and that nothing was ever said about marriage, by either to the-other, until after the complainant became pregnant, but after that the .complainant repeatedly asked him to marry her, and that he on each occasion resolutely refused. Just at this point it is necessary to refer again to what the defendant swore passed between the complainant and himself in their interview in August, 1891. He at first testified, it will be remembered, that she asked him to marry her publicly, and then changed his testimony by testifying that she had not used the word “ publicly,” but had simply asked him to marry her. He also swore' that, in reply to her solicitation, he had told her that he would. not
The truth of the complainant’s evidence as to the fact of marriage is also confirmed by oral admissions made by the defendant under circumstancss which make it very difficult, if not impossible, to believe that he did not speak the truth. The complainant’s child was born November 26th, 1891, in the house of the defendant’s father at Lebanon. A few days after its birth the physician who attended the complainant in her confinement wrote to the defendant, informing him that he had delivered his wife of a son, and enclosed his bill. The defendant received the letter, but did not reply. He neither wrote to the physician nor to the complainant. Neither did he visit the complainant nor do anything for her. About three weeks after the birth of the child, the complainant, accompanied by Miss Mary E. Sheets, went to New York to see the defendant to ascertain the cause of his neglect and inattention. They found him at the store where he was employed. From there he took them to the Cosmopolitan Hotel for dinner, and then went with them to Macy’s store on Fourteenth street, and from there to the depot of the New Jersey Central railroad at Communipaw, where he put them on a train for Lebanon. Miss Sheets swears that, at three
“ I told him that I wanted to know if they were married, for some of the people out at Lebanon said that they did not believe they were, while others-said they did. He said, ‘We are married.’ Then I said, I want you to tell me the truth, so that I can go home and tell the people. He said, ‘ We are married and you can tell them so.’ ”
She also testified that the defendant on that day said the same-thing twice afterwards. The defendant admits that Miss Slieetsput the questions to him which she swears she did, and that he-answered them, but he says that he invariably answered in this-way : “Ask Lucy, she can tell,” or “ she knows.” He further-said that after making this answer “ nothing further in particular was said,” either by Miss Sheets or himself, and that at neither time, when he gave this answer, did Miss Sheets say that Lucy had already told her that he and she were married. And yet that was the fact. At least three months before Miss Sheets had her interview with the defendant, the complainant had told Miss Sheets of her marriage and made known to her the circumstances attending its celebration. This being so, it cannot be believed that if the defendant had answered Miss Sheets in the way he says he did, that Miss Sheets would not at once, under the pressure of an irresistible impulse created by his words, have said, “ Why, Lucy has already told me — she says you are married.” Those or similar words would undoubtedly have leaped from her lips as the natural and unrestrainable response to such-answers as the defendant says he gave. But if his answers were what Miss Sheets says they were, then there was no reason why anything “ further in particular should be said,” and that, it will be.remembered, was the fact according to the defendant’s testimony, namely, that after he answered Miss Sheets’ questions. “ nothing further in particular was said.” The defendant, when.
There are other facts in evidence, the effect of which is to confirm, to a greater oy less extent, the truth of the complainant’s evidence. I shall not mention or discuss them. This opinion is already too long. In addition to what has already been said, I shall content myself with simply saying that a full and careful consideration of the entire evidence has resulted in putting my mind as completely at rest, as to the vital fact of the case, as it can be in any case where the evidence in proof and disproof of such fact stands in as sharp conflict as it does in this.
The complainant is entitled to a decree, with costs.
I add — not, however, as a part of my opinion, but for the information of the parties and their counsel — that an allowance will be made to the complainant of $340 a year, payable quarterly in advance, in sums of $85 each. The decree will direct that the defendant shall give security.