80 A. 139 | N.H. | 1911
This is an action of trespass quare clausum fregit. The defendants pleaded the general issue, with a brief statement alleging soil and freehold. Both parties claimed to own the same tract of land. Upon the issue of title the burden of proof was upon the plaintiff. Tabor v. Judd,
January 11, 1872, Alice married Warren Heath, who is now alive. December 21, 1879, without having procured a divorce, she married George Merrill and lived with him as his wife down to the time of his death, a period of about twelve years. The two children were the result of this union. *143
"All marriages prohibited by law on account of the consanguinity or affinity of the parties, or where either has a former wife or husband living, knowing such wife or husband to be alive, if solemnized in this state, . . . [are] absolutely void without any decree of divorce or other legal process." P. S., c. 175, s. 1. The plaintiff concedes that the marriage into which George and Alice entered in 1879 was illegal and void. This concession involves an admission that Warren was alive at the time the marriage was solemnized, that the contracting parties knew that he was alive, and that Alice was not divorced from him. If it were true that the contracting parties did not then know that Warren was alive and honestly believed him to be dead, and that that fact, if proved, might present the question whether the marriage was voidable and not void, it is unnecessary in this case to consider it, as the plaintiff, upon whom the burden of the issue rested, has failed to establish the fact. It would seem, however, from the decision in Emerson v. Shaw,
The plaintiff rests his case upon section 15, chapter 174, of the Public Statutes, which reads as follows: "Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of three years, and until the decease of one of them, shall thereafter be deemed to have been legally married." His contention is (it being found that George and Alice cohabited and acknowledged each other to be husband and wife, and were generally reputed to be such for the period of three years and until George died) that they must be deemed legally married; that the statute was enacted to quiet inheritances, and entitled Alice to inherit from George as his widow and the children to inherit from him as though they were legitimate. The defendants' contention is that the statute — conceding it to be a statute of repose to quiet inheritances — was only intended to apply to cases where there was no legal obstacle disqualifying the parties from entering into a valid marriage.
In interpreting the statute it is necessary to take into consideration the state of the law, both statutory and common, upon the subject of marriage and inheritance, as it existed at the time the statute was passed, and such subsequent enactments as may lend aid in ascertaining its meaning. It was first enacted in 1842. R. S., c. 149, s. 11. At the same time laws were passed providing that "all marriages prohibited by law on account of *144
the consanguinity or affinity of the parties . . . shall, if solemnized in this state, be absolutely void without any decree of divorce or other legal process" (R. S. c. 148, s. 1); that such marriages shall be "incestuous," and the issue "illegitimate." R. S., c. 147, s. 3; P. S., c. 174, s. 3. At common law, marriages within the prohibited degrees of consanguinity and affinity were voidable only, and until set aside were practically valid. Hayes v. Rollins,
Again, at common law, a marriage was held to be absolutely void if at the time it was entered into either party had a former wife or husband living. Heffner v. Heffner, 23 Pa. St. 104; Smith, J., in Emerson v. Shaw,
This was the state of the law on the subject down to 1845, when the legislature, thinking no doubt that it visited too great a punishment upon innocent children born out of lawful wedlock, enacted a statute providing that "bastards and their issue shall be heirs of the mother," and that "her real estate shall descend and her personal estate shall be distributed . . . in equal shares to her legitimate and illegitimate children and their issue." Laws 1845, c. 238, ss. 1, 2; P. S., c. 196, ss. 4, 5. And in 1860, in further recognition of this situation, it was enacted that "where the parents of children born before marriage afterward intermarry, and recognize such children as their own, such children shall inherit equally with other children under the statute of distribution, and shall be deemed legitimate." Laws 1860, c. 2343, s. 1; P. S., c. 174, s. 18; Morgan v. Perry,
It is apparent from what has been said that the statute under which the plaintiff claims cannot be given the construction for which he contends; that the result of such a holding would be either that Alice, by living in adultery with George, effected a divorce from Warren, or if this is not so, that she must be regarded as the legal wife of both and entitled to inherit from both. That parties cannot divorce themselves by their own acts, or be divorced by a legislative fiat or anything short of a judicial decree, are propositions too well recognized to require discussion. And that it was intended in the enactment of the law that a person standing in the relation which Alice did to George and Warren should be regarded as the legal wife of both and entitled to inherit from both, is altogether too improbable to merit serious consideration. *146
Neither can it be presumed that the act contemplates that children born of parents whose marriage is absolutely void because it was either incestuous or polygamous should be regarded as legitimate, especially when in one case a statute expressly declares them to be illegitimate and in the other they are so regarded at common law. If the legislature intended to accomplish such a result, it is reasonable to suppose it would have used unequivocal language declaring such an intent.
In compliance with the order made in the superior court, there must be,
Judgment for the defendants.
All concurred.
