132 Mo. App. 555 | Mo. Ct. App. | 1908
Plaintiff, claiming to be the widow of Dr. Joseph B. Davis, deceased, formerly of Saline county, presented a claim to the probate court of that county, where the estate he left was being administered, asking the allowances which the statute gives a widow, including money in lieu of a year’s provisions, and $400 as part of personal dower. [Secs. 106-108, R. S. 1899.] She prevailed in the probate court and the circuit court, where the case was taken by appeal, and the defendant administrator has brought the case here. The cause was tried before the court, without a jury, and the defense is based on the ground that plaintiff is not the widow of deceased; that they were never married. There is no pretense of a marriage solemnized by religious ceremony, or under the statute, but a common law marriage is claimed by plaintiff to have been
That there may be a valid marriage without solemnization by minister, priest, or officer, is not questioned in this country, except where the statute forbids, and it once was so understood in England. [Dyer v. Brannock, 66 Mo. 391.] Marriage is recognized as a status brought about by civil contract and it may be contracted by the parties themselves, as any other contract, without even the presence of witnesses. “Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society.” [Dalrymple v. Dalrymple, 2 Hag. Con. Rep. 54.] To which we may add that the marriage of Adam and Eve was not only without a witness, as noticed in. that case, but, so far as the record shows, they married themselves, he repeating the contract and she acquiescing by silence: “And Adam said this is now bone of my bones and flesh of my flesh; she shall be called woman because she was taken out of man.” [Genesis, Chap. II, v. 23.]
Like other contracts, it may witness an agreement performed eo instanti, that is, the contract of marriage may be a contract which makes a marriage at the time, ip sum matrimonium, or, as also expressed in legal terms, a marriage per verba de praesentij or, it may be a contract not intended as a then present marriage, but for a future marriage, or as expressed in legal terms, per verba de futuro. And may be proven like other contracts. Imboden v. Trust Co., 111 Mo. App. 220; Plattner v. Plattner, 116 Mo. App. 405. These two forms are illustrated in 1 Bishop on Marriage and Di
But it is insisted by defendant that when the marriage is a common law marriage, something more than a contract in praesenti is needed. He says that there must be an assumption of the marriage status, and he. argues that that assumption means a performance or entering upon the duties of the marriage relation. Such contention will not bear scrutiny. It is not supported by any authority. “When the mutual consent, in the present tense, is between competent parties, they are married.” If intercourse follows it adds nothing in law to the marriage itself, “though it may aid the proof of the marriage.?’ Mr. Bishop adds (sections 314, 315) that “The mere present consent already described constitutes marriage everywhere, except that by the laws of some countries there must be specified forms super-added, but subsequent copula is not material.” Sir William Scott, after great research, concluded “that the contract de praesenti does not require consummation in order to become 'very matrimony,’ that it does, ipso facto, et ipso jure, constitute the relation of man and Avife.” [Dalrymple v. Dalrymple, supra.] And so the American text-writers state, expressly, that cohabitation, including sexual intercourse, is not necessary to the validity of a contract per verba de praesenti. [2 Kent, Com., 86, 87; 2 Greenleaf, Evid., 460; 1 Scribner on Dower, 60; Schouler on Husband and Wife, sec. 31.] And to the same effect are the American cases. [Dyer v. Brannock, 66 Mo. 403; Topper v. Perry, 197
The contract of marriage is defined by judge Gantt in Topper v. Perry, cited above, as being “a civil contract, by which a man and a woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting and must, in fact, consent, to form this new relation.” And the Judge states, in terms, that “if the contract be made per verba de praesenti it is sufficient evidence of marriage.” He then proceeds to speak of the marriage status, or of marriage as a status, and says that “when the consent to marry is manifested by words de praesenti, a present assumption of the marriage status is necessary.”
What is a present assumption of the marriage status? It is not cohabitation and intercourse, as contended by defendant. It need be no more than a recog
So it is necessary that there should not only be a present contract, but it must be intended that such contract is to then and there produce the status; it must look to the “consortium vitae;” and as some contracts, though in the present tense, Avere not accompan
The question tos before the Supreme Court of Minnesota in a case very like this and arising in the same way. It was expressly held that when a present contract of marriage in good faith is shown, the status becomes thereby fixed without cohabitation, and proof of reputation of marriage is not necessary. [Carey
But the defendant administrator insists that ' it was determined in State v. Kennedy, 207 Mo. 528, 106 S. W. 57, that it is requisite to the validity of a common law marriage that there should be something-more than the contract; that reputation and cohabitation were necessary. The court by no means decided that. No one could say that reputation of marriage was any part of the marriage for the simple reason that there could not be rightful reputation of marriage until after the marriage; and so cohabitation is not a part of the marriage, for it can only lawfully exist after the marriage — as a sequence of the marriage. In that case both the man and woman testified that they had never been married. There was evidence only of living together illicitly; not even reputation of man and wife was shown. Yet it was contended in the Supreme Court that there was evidence tending to show a common law marriage. In referring to the matter, as thus appearing in the record, the court said that “in
Questions of the effect of a contract when admitted, and proof of a contract when disputed, are far different questions. Difficulty of producing evidence which will satisfy those whose duty it is to hear it and pronounce judgment upon it, is beside the question of the contract
Mr. Bishop defines the marriage status as distinguishable from the contract. He says: “Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law to matrimony.” [1 Bishop on Marriage and Divorce, sec. 11.]
Therefore, in order to a correct understanding of the law governing common láw marriages and to avoid confusion in consideration thereof, the distinction between the contract Avhich brings into existence the marriage status, and the status itself, must be kept in mind. [Carey v. Hulett, 66 Minn. 327.] The contract makes the marriage and the status is the marriage. Hence, it is said that marriage is a status which arises out of the contract. [1 Bishop, Mar. and Div.,
That a contract of marriage in praesenti is itself a marriage, that is, produces the marriage status without anything more, is stated by all commentators on the common law and by all adjudications thereof in this country. It is as much a marriage as is a formal ceremony performed by an officer or minister. If a man and woman, intending to be married by the act, have such formal ceremony performed and the man should die the nest moment, would not the woman be his widow and, in this country, be entitled to dower and other rights of widows? There can be no difference in the resulting effect of such formal marriage and that where a man and woman, intending to be married by the act, mutually contract in praesenti, he to be her husband and she to be his wife. She becomes his wife as fully by the latter mode as the former; and, in order to make them man and wife, there is no more necessity for anything further in the one case than the other. What are the two persons the nest moment after they contract that they are husband and wife? Are they married or single? If yet single, when do they become married — after what act? Sesual intercourse? Is that act essential? If so, proof of a contract in praesenti followed by living together in the same house and the husband providing therefor, but without such intercourse (such instances have happened) would not constitute them husband and wife. Bishop says that “at each particular moment of the esistence of persons, they must be either married or single; there
And so legal authority in the United States supposed this was the common law of England. But it seems that in 1844 an authoritative announcement was made, in the case of Reg. v. Millis, 10 Clark & Fin. 534, to which we have already referred, that it had never been the common law of England that a marriage could take place, except in a limited degree, without being regularly solemnized according to ecclesiastical law; that is, by certain church formality. It is, indeed, conceded by that case that there may be a marriage, without religious ceremony, by each party contracting per verba de praesenti, he to be her husband and she to be his wife, but while such marriage was indissoluble by either or both parties and while it enabled the willing one to proceed against the unwilling party to compel the latter to have the ceremony duly performed, and while a second marriage, though formally solemnized, could be dissolved on account of it, it was not a marriage for most of the material rights, of husband and wife and therefore was said not to be “a complete” or “perfect” marriage. It was not complete in that the woman did not take dower on the man’s death; the man had no rights in the woman’s property; the children were not legitimate; it did not impose upon the woman the disabilities of coverture; it did not make the subsequent marriage of either, while the other was alive, void, but only voidable. [p. 878.] It has been stated that that case was a startling announcement to the bench and bar of this country, as well as to a large proportion of the judges and law
While whát we have written as to the completeness ■of a common law marriage is sufficiently explicit, yet as the effect of such marriage on the rights of the parties, is stated in Reg. v. Millis, to be so far short of a regular marriage by ceremony as, among other things already mentioned, not to carry dower to the widow, w7e will add, in order to leave no room for misunderstanding, that the widow who has been thus married is entitled to all the property rights accorded a widow who has been married by ceremony. The other rule came into existence by reason of a system of two courts with jurisdiction over the same matter. [1 Scribner on Dower, 105-112.] 'The temporal courts declared what would constitute a valid marriage, and the ecclesiastical courts, with jurisdiction over the marriage re
It is interesting to note Voltaire’s view of the subject. He states that “Marriage may exist, with all its natural and civil effects, independently of the religious ceremony.” [6 Voltaire’s Phil. Die., 30.] “A long time elapsed before the ministers of religion had anything to do with marriage. In the time of Justinian, the agreement of the parties, in the presence of witnesses, without any ceremonies of the church, legalized marriages among Christians.” [Ib., 30.] “Marriage is a contract in the law of nations, of which the church has made a sacrament. But the sacrament and the contract are two very different things; with the one are connected the civil effects; with the other the graces of the church. So when the contract is conformable to the law of nations, it must produce every civil effect. The absence of the sacrament can operate only in the privation of spiritual graces.” [4 Voltaire’s Phil. Dic., 410.]
So the point for us to determine, and the argument of counsel is directed that way, is what evidence will amount to proof of a common law marriage in this country. We have already stated the law as we understand it, and it only remains to see if the evidence in the case fulfills its requirements.
Both Dr. Davis and Mrs. Phillips were legally capacitated to make the contract charged to have been made. There was evidence tending to show that he desired to become married, of his acquaintance with her and of his frequent visits to her house. Finally he went there, as testified to by her son, “one morning about 9 o’clock; me and my oldest sister was in the room when he came in, Ave went in the kitchen; him and my mother had a talk there; he called us in the room and they were standing up on the floor and had hold of hands and he said they had come to the conclusion
She further testified that at another time, after-wards, the doctor said “ ‘I will make this agreement in the presence of you. We have agreed if it is agreeable with you to be man and wife under the common law.’ And I said ‘That is what I want to hear; I have been in trouble about this thing, and I don’t want to have any more trouble about it; if it is law it is law, and I am satisfied.’ In 1905 we lived in the country; I had no chance to see the doctor and meet up with him. In 1905 we moved back to town. He said at that time
If we concede that the evidence of what occurred at what is called the first contract, standing alone, was not sufficiently clear and explicit to show a present contract of marriage — yet it is not necessary to say whether what followed in the way of conduct by the contracting parties was sufficient to show that they understood Avhat they said at that time to be a legal contract of marriage and that, in accordance Avith that idea of its legality; they liAred together as man and wife, and therefore, thus supplemented, was sufficient to constitute a marriage at common law. For, however that may be, there wras evidence strongly tending to show that acting upon the contract as constituting a marriage, they, after the birth of the child, again formally entered into a contract which showed a marriage Avith intention to assume the marriage status in praesenti. We therefore conclude that there was ample evidence to support the court’s finding of a marriage at common law.
In so doing we have in mind the evidence in behalf of the defendant that a marriage Avas not intended and
We do not regard the rulings in excluding statements made by Dr. Davis in regard to the plaintiff as improper; nor do we see how, if admitted, it would have changed the result. The judgment must therefore be affirmed.