92 Pa. Super. 275 | Pa. Super. Ct. | 1927
Argued December 13, 1927. Appellee claims that the decedent was her husband; and the lower court has disallowed the credit taken for payment of collateral inheritance tax and awarded her the entire net balance of his estate on account of her claims for $500 exemption and $5,000 allowance. It is admitted that no marriage ceremony was ever performed and the evidence as to cohabitation and reputation is conflicting. A number of witnesses testified on behalf of the appellee that she and the decedent lived together in the apparent relation of man and wife for a number of years, that they were reputed to be such in the neighborhoods in which they lived or boarded together, that goods were furnished her and charged against her as his wife, and that he had introduced her as his wife to many of their friends and acquaintances; though she admitted that he introduced her to his mother as his sweetheart, and that the old lady never had been informed that they were married, and that at the places where she had worked since her marriage, a laundry and Wanamaker's Store, she had been known as Elsie Hatcher, the name of her former husband from whom she had been divorced on February 23, 1915. On the other hand, it was shown that the decedent was registered as a single man living with his mother or sister, (the administratrix and heir *277 at law), where it was alleged he maintained his residence and voted in that district; that he passed as a single man and was known as such by his relatives and friends and by his superiors in the Philadelphia Fire Department and the officials of the Philadelphia Fire Department Relief Association, the death benefits from which formed the principal part of his estate. It was also shown that the appellee was registered and had voted under the name of Hatcher.
Notwithstanding the divergent testimony, there was probably sufficient evidence, if believed, to sustain a presumption and a consequent finding that the parties were married, if the evidence had been confined to cohabitation and reputation. But the claimant testified to the precise form of the contract of marriage between her and the decedent, and by this she must stand or fall. If the alleged conversation constitutes a contract of marriage, evidence of cohabitation and reputation is received in corroboration of her testimony that a marriage contract was in fact entered into. But if she herself proves that no valid marriage contract was actually entered into between them, evidence as to cohabitation and reputation goes for nothing: Tholey's App.,
The testimony of the claimant as to the alleged contract of marriage was as follows: "In 1916 I was living then at a fireman's house; the fireman died and it became necessary that the home be broken up. I had two children to support by a former marriage at that time, and I was rather worried and Mr. Murdock had expressed his feeling to me and I also to him at that time, and I really was sick at the time also and I was not able to work. So we decided, or he decided that he had his mother to keep and she was an awful burden on him at the time, and he thought perhaps he would be able to stay at the sister's house where they then resided; that was in West Philadelphia. He proposed to me would I take him, he asked me did I care for him and I told him I did and I really did, I was sincere. He asked me would I take him and accept him on those terms, he felt if his mother ever found out that there was a marriage contract it would kill her...... He said, `Will you be good to me?' I said, `Yes, I will do everything that a wife is supposed to do.' Well, we just decided then to say we were married and let it go at that." Her subsequent statement on cross-examination, "My only marriage contract was contracted verbally with Mr. Murdock; then we both agreed and entered in that state of man and wife," is evidently only her present explanation of the effect of the conversation between them before quoted.
Do the words testified to by her, as before stated, constitute a valid contract of marriage? In Hantz v. Sealy, 6 Binney 405, 408, Chief Justice TILGHMAN said: "The judge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time without regard to form. He told them also, that in his opinion the words proved did not constitute a marriage, and in this I agree with him." In that case the woman *279 believed herself married, but the marriage was void because the man had a wife living at the time. After a divorce had been secured by the man's legal wife, a lawyer advised the two to celebrate a new marriage. The man said, "I take you for my wife," and the woman on being told that if she would say the same thing the marriage would be complete, answered, "to be sure he is my husband good enough." Chief Justice TILGHMAN says of this, "Now these words of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage ...... what was done was too slight and too equivocal to establish a marriage."
This was followed by Com. v. Stump,
This was recognized to be the law of Pennsylvania by the Supreme Court of the United States. See Patterson v. Gaines, 6 Howard 550, 587; Maryland v. *280
Baldwin,
The rule has been adhered to in more recent cases. In Stevenson's Est.,
The same rule prevails in this court. In Com. v. Haylow,
In this country the doctrine of the canon law, that a contract per verba de futuro followed by consummation constituted a marriage, has not been generally followed. In Cheney v. Arnold,
While the case of Richard v. Brehm has been cited with approval by our Supreme Court on other points, a somewhat careful review of its decisions has failed to disclose to the writer one other case in which it has been held by that court that a contract per verba de futuro followed by consummation constitutes a valid marriage. Had it been so, a different decision would have been required in Grimm's Est.,
We are of opinion that the rule enunciated by Chief Justice TILGHMAN in 1814, (Hantz v. Sealy), reiterated in 1866 (Com. v. Stump), and in 1880 (Tholey's *285 App.) subsequent to Richard v. Brehm, and while Mr. Justice MERCUR was a member of the court, and restated in 1922 (Craig's Est.) and 1925 (Edwards v. Enterprise Mfg. Co.) is still the law of Pennsylvania, viz., that to constitute a valid marriage in this State there must be a contract per verba de praesenti, uttered with a view to establish the relation of husband and wife.
Judged by this standard, we are of opinion that the words which passed between the claimant and decedent did not constitute a contract of marriage. They are no stronger than several of the cases hereinbefore referred to which were held insufficient. There seems to have been a proposal or an asking on the part of decedent whether the claimant would take him and "accept him on those terms" — apparently that his mother must not know the relation between them — and whether she would be good to him; to which she replied, "Yes, I will do everything that a wife is supposed to do," and then — "Well, we just decided then to say we were married and let it go at that." There is no averment that they did marry each other by words in the present tense, no taking of her by him as his wife and of him by her as her husband, but, "we just decided then to say we were married and let it go at that" — an agreement to call themselves married for the purpose of living together rather than an actual marriage. It is not as strong or explicit as in Hantz v. Sealy, supra, but is about the same as in Com. v. Stump, supra, where the woman went to live with the man "under a mutual promise and agreement that they would sustain towards each other the relation of husband and wife" and did thus live and cohabit together.
The claimant when she went to live with the decedent was not a young girl but a mature woman, who had already been married, and had two children, and who knew how such a contract is entered into. If she *286 lived with the decedent without any ceremony or any contract of marriage per verba de praesenti, she assumed no obligations of a wife and acquired no rights as such, and is not entitled to the benefits conferred on a wife by the laws of the Commonwealth.
The assignments of error are sustained. The decree is reversed and the record is remitted to the court below to report distribution in accordance with this opinion.