10 Pa. Super. 124 | Pa. Super. Ct. | 1899
Opinion by
This is an appeal from a decree allowing the petition of Laura Hines for the “ widow’s exemption.” The question raised by the exceptions, all of which were overruled,, is, whether the petitioner and the decedent were married. The learned judge
1. It is argued that if the words of this contract were sufficient in law, because followed by cohabitation, yet illicit intercourse having preceded, they did noi ■ aablish a valid marriage. We need not review the cases upon this subject, because taking any statement of the rule that can be deduced from them, there is no sufficient evidence to warrant its application here. There is evidence, but not uncontradicted, that the decedent took, and the petitioner permitted him to take, indecent liberties with her. This is as far as the competent evidence goes. It should be observed also that at this time the parties lived entirely apart and that the acts testified to were in the presence of many other persons. Thé evidence, if true, does not raise a prima facie presumption even, much less establish the fact, that the cohabitation after the alleged contract of marriage was the mere continuation of an illicit relation that had existed before. The latter fact must first be proved by clear and satisfactory testimony before the principle of Hunt’s Appeal and kindred cases can have any application: Drinkhouse’s Estate, 151 Pa. 294.
2. The fact, even if it were conclusively shown, that during their cohabitation at Fourth and Catherine streets, the parties kept an unlicensed place for the sale of liquor where men were permitted to resort for card playing, or even gambling, would throw little if any light upon the question of marriage. The fact that they kept an assignation house or that the petitioner had immoral relations with others, either with or without the knowledge of the decedent, might have some significance. It is urged that “ the alleged marriage contract is founded upon the story of a prostitute, without a line of direct substantia] proof to support it, and in the face of continued prostitution during the whole period of the marriage.” We suppose that the testimony as to the reputatibn of the house and of the petitioner was introduced with a view to sustain this allegation.
3. Four of the witnesses who testified as to the character of the house and of the petitioner were also called to testify as to the repute of marriage. One of them testified that some thought they were married and others not; that the general feeling through the neighborhood was that they were not married; and that this impression was created to some extent by the conflicting statements the decedent made as to the place where the marriage had taken place. (It would seem, therefore, that, at all events, the decedent claimed that there was a marriage.) This witness admitted, moreover, that the petitioner was addressed by the majority of people, both in and out of the decedent’s presence, as Mrs. Hines; that the witness so addressed her; that the child called the decedent “pop;” and that the latter spoke to and of the . child as his own. Another witness testified that many of the neighbors doubted whether they were married; “ others did not speak their mind on it, as it was not material; ” that many of the neighbors thought she was simply his housekeeper. This witness gave the singular reason amongst others for his belief that she was not his wife that he had “ seen many men treat their housekeepers better than he treated her.”
4. His brother, his aunt and four or five other witnesses testify to declarations more or less positive made by the decedent at different times to the effect that he was not married. These declarations did not deter the aunt and the mother from visiting the decedent’s home, and receiving visits from the petitioner, nor the brother from permitting the petitioner to ride with bim as chief mourner at the funeral, nor the mother from taking up her home with them when they moved to Euclid avenue; and, notwithstanding them, it was thought advisable by those interested to obtain from the petitioner a formal renunciation of her right to administer. This was drawn for her to sign and was signed, “ Laura Hines.” To say the least, the conduct of these relatives did not show a very positive reliance on the decedent’s alleged assertions to them that he was not married. Indeed, the mother admits that in November, 1896, her son told her he had been married to the petitioner in New Jersey. None of these declarations of Louis B. Hines that he was not married were made in the presence of the petitioner, and while we do not say that the evidence was wholly inadmissible — see Greenawalt v. McEnelley, 85 Pa. 852 — yet, as the learned judge of the court below well says, a man cannot rid himself of a marriage'
5. A half dozen witnesses living in the neighborhood testified either that they had the reputation of being husband and wife among their neighbors or that they never knew or heard anything else but that they were married. This negative testimony, coming from near neighbors and acquaintances, is entitled to about as much weight in proving the speech of the people in such a matter as positive testimony that the neighbors said they were man and wife. If two young people living as these did are not cohabiting as man and wife, and holding themselves out to the world as living in that relation, the neighbors would be very likely to speak of it. The same witnesses, as well as seven or eight more, testify, that the decedent uniformly spoke of and addressed the petitioner as his wife, and the child as his child. The petitioner did the work of the house, helped him in his business, attended the store, and during some of the time earned money by sewing to keep the house. When her child was about to be born, the decedent summoned the physician to deliver “ his wife; ” the bill was made out in that way; and the fact that the child was his son was recognized in the certificate of birth and in the application for the policy of insurance which, later, the decedent took out on the child’s life. When the decedent sold out to the Shapiro the former said that his wife must sign, and accordingly the petitioner witnessed the paper as “ Mrs. Hines.” We need not attempt further to marshal the evidence upon the subject of repute. Probably we have gone into it further than was needed already. It cannot be said, that all the facts upon which the decree was based are proven beyond the possibility of a doubt; we are, however, clearly of the opinion that the preponderance of the evidence, whether considered with reference to the number or to the credibility of the witnesses favors the conclusion, that during all the period of their cohabitation these people had the general repute among their neighbors and acquaintances, of being husband and wife, and that they recognized and treated each other as persons living in that relation.
The counsel for the appellant admit that it is useless to at
Did the cohabitation begin in the agreement testified to, and did the parties intend a present marriage and not a mere executory contract to marry? These are the great questions in the ease. Reputation and cohabitation are not marriage, as has frequently been said; but they are facts from which marriage is presumed. In the present case, these facts, coupled with the repeated declarations of the parties and their acts which were equivalent thereto, have the additional effect of corroborating the testimony of the petitioner as to the contract and of showing the sense in which they used the words. The testimony convinced the court below that they intended a present marriage, and in this conclusion we concur. Interpreting the words of the contract in the light of the intention and acts of the par
The decree is affirmed and the appeal dismissed at the cost of the appellant.