1 Md. Ch. 479 | New York Court of Chancery | 1828
This case standing ready for hearing, and having been submitted without argument, the proceedings were read and considered.
Marriage has been considered- among all nations as the most important contract into which individuals can enter, as the parent not the child of civil society.
According to the law of England, a contract of marriage is not deemed complete, so as to entitle the wife to dówer, and the issue to inherit, unless it be celebrated in the face of the church, or with the blessing of a priest.
In general it is sufficient to show, that a man and woman have cohabited as husband and wife; have represented themselves as such; or have been reputed in the neighbourhood of their residence to have been legally married, to establish the fact of their marriage and the legitimacy of their children. The only exceptions to this rule are the cases of a prosecution for bigamy, and an action of criminal conversation, in each of which, proof of an actual marriage is necessary. For although the action of crim. con, is, in its form, properly a civil action, yet it is in the nature of a criminal prosecution; and if proof of cohabitation or reputation were received as alone sufficient evidence of the marriage, it would place it in the power of the parties to collude together and pass-themselves off as husband and wife occasionally for the express purpose of profiting by such a suit.
In England the spiritual court has jurisdiction to inquire into the validity of a contract of marriage; and may, in certain cases, determine, that it is wholly void, or decree, that it be dissolved, and that the parties be divorced; but in all cases not falling within the jurisdiction of the ecclesiastical courts the parliament alone can grant relief,
In England, the validity of a marriage which is not absolutely void but merely voidable, can only be drawn in question and determined, in a suit instituted for that purpose, in the ecclesiastical court. But, as by the death of the husband, or the wife, the marriage is at an end, so any then depending suit, which may have been instituted during their- lives for that purpose, is thereby immediately abated, and cannot be, in any way, revived or further prosecuted; nor can any other judicial proceeding be thereafter instituted, in the ecclesiastical courts or elsewhere, for the purpose of declaring a marriage, which has been thus terminated by the death of either party, to have been null and void, for the purpose of bastardizing the issue of such marriage, or barring the husband of his courtesy, or the widow of her dower; nor can any one, by any judicial proceeding be bastardized after his death, who had carried the reputation of legitimate during his life; because wrongs, and personal defects die with the individual; and the peace of families and the nature of the testimony by which alone pedigrees are capable of being traced, in cases where a party makes title by
But the issue of Mary by her second and third marriages, which were absolutely void, not merely voidable, are here claiming as parties to this suit; and found their title to recover materially and essentially upon the validity of tliose marriages, and their own legitimacy as the fruit of them. In all such cases, where a party claims as heir or next of kin, and his own legitimacy, or that of the deceased under whom he claims, is thus necessarily involved, and put in issue, it never has been questioned, that the court might inquire into and decide upon the validity of the marriage, or the fact of legitimacy. This has been often done in England,
When a question of legitimacy becomes thus involved in a controversy in a court of chancery, it is said to be usual to make up an issue, and have the matter tried' by a jury who are the proper judges of fact.
The proofs clearly establish the fact, that the late Mary, the mother of the plaintiffs, had been, long previously to their birth, legally married, and was then the lawful wife of a certain John Leiois, who at the time of the marriage, and continually ever since, has resided, and is now living in Ireland. And consequently these plaintiffs, who were all born in Maryland many years after their mother came to and resided in this state, are all of them illegitimate ; and, as such, they cannot take as her legal representatives, or as the next of kin of the late Henry Somervell. The act of 1825, ch. 156, has no retrospective operation, and therefore cannot affect this case.
Whereupon it is Decreed, that the bill of complaint be'dismissed with costs to be taxed by the register.
Dalrymple v. Dalrymple, 2 Hag. Con. Rep. 54.
Turner v. Meyers, 1 Hag. Con. Rep. 414; Browning v. Roane, 2 Phill. Rep. 69; Shelf. Lun. 59, 446; Portsmouth v. Portsmouth, 1 Hag. Rep. 355.
Gordon v. Pye, Fergusson’s Rep. Append, note A. 349; Westmeath v. Westmeath, 1 Jac. Rep. 138.
Co. Litt. 132.
Dalrymple v. Dalrymple, 2 Hag. Con. Rep. 54.
Dalrymple v. Dalrymple, 2 Hag. Con. Rep. 54.
4 Bac. Abr. 531, 536.
1702, ch. 1, s. 4; 1715, ch. 44, s. 25.
1717, ch. 15.
February 1777, ch. 12.
Morris v. Miller, 4 Burr. 2057; Birt v. Barlow, Doug. 171.
Stark. Evi. 4 pt. 36 & 1185.
4 Bac. Abr. 554.
Utterson v. Tewsh, Fergusson’s Rep. 23; Mrs. Levett’s Case, Ferg. Rep. appen. note G. 382.
February 1777, ch. 12, s. 15.
Portsmouth v. Portsmouth, 1 Hag. Rep. 355; In matter of Fust, 1 Cox. 418; Ex parte Turing, 1 Ves. & Bea. 140; Ferlat v. Gojon, 1 Hopk. 478.
Co. Litt. 33; 1 Hall. Const. Hist. Eng. 395; Kenn’s case, 7 Co. 142; Hinks v. Harris, 4 Mod. 182; Hemming v. Price, 12 Mod. 432; Haydon v. Gould, 1 Salk. 119; Brownsword v. Edwards, 2 Ves. 245; Elliott v. Gurr, 2 Phill. 16.
Alleyne v. Grey, 2 Salk. 437; Mace v. Cadell, Cowp. 233; Stark. Evi. 4 pt. 218, 931.
Cheseldine v. Brewer, 1 H. & McH. 152; Ferlat v. Gojon; 1 Hop. 494.
1 Bac. Abr. 571.
Barnesly v. Powel, 1 Ves. 120, 287; Stace v. Mabbot, 2 Ves. 553; Duntze v. Levett, Fergusson’s Rep. 63; Stark. Ev. 4 pt. 931; Peake v. Highfield, 1 Russ. 560.
Roach v. Garvan, 1 Ves. 159; Herbert v. Herbert, 3 Phill. 58; Duntze v. Levett, Ferg. Rep. 63; Edmonstone v. Lockhart, Ferg. Rep. 168; Butler v. Forbes, Ferg. Rep. 209; Herbert v. Herbert, 2 Hag. Cons. Rep. 263; Ruding v. Smith, 2 Hag. Cons. Rep. 371.
Revel v. Fox, 2 Ves. 270; Read v. Passer, 1 Esp. Rep. 213.
Short v. Lee, 2 Jac. & Walk. 496; Peake v. Highfield, 1 Russ. 560.