93 Pa. Super. 472 | Pa. Super. Ct. | 1928
Lead Opinion
KELLER and GAWTHROP, JJ., dissent.
Argued April 16, 1928.
The appellant's claim to share as widow in the distribution of the decedent's estate was rejected by the Orphans' Court. It appears from the evidence that the claimant lived with her parents in Tennessee where in January, 1871, she was married to one, Charles A. Eastman. After living together about two years at the home of her parents, her husband took up his residence at his father's home nearby and continued to live there until sometime in 1882, when he left the state without the knowledge of his wife, from which time she had no communication with him nor information as to his whereabouts prior to his death in Michigan in November, 1903. Not long after his desertion, her father having died, she accompanied her mother back to Armstrong County in this State where they lived before going to Tennessee. Some time prior to 1898, the claimant learned from a friend in her former home in Tennessee that it was reported *474
there that her husband was dead, whereupon she employed an attorney living in that vicinity to ascertain the fact with respect to him and inform her. After inquiry, her attorney reported that he was unable to get any information as to whether her husband was living or dead, or as to his whereabouts if living. On the 18th of August, 1898, the claimant and John L. Holben went to Salamanca in the State of New York where they entered into a marriage contract before a Justice of the Peace there living. Holben had been married before and had a family of twelve children, nine of whom were living at home. He and the claimant returned to his home where the latter was introduced to his family and his neighbors as his wife. She was so recognized and received among their relatives, neighbors and acquaintances and so conducted herself until the death of Holben in January, 1926, up to which time there had been no question raised as to the validity of their marriage. They were esteemed in the community in which they lived and Holben who was a prosperous business man had accumulated a considerable estate. Seven conveyances of real estate executed at different periods between July 19, 1904, and December 8, 1922, conveying land owned by Holben in Armstrong, Jefferson and Butler Counties in Pennsylvania, were signed by Holben and the claimant as husband and wife and regularly acknowledged as such by them. By his last will executed January 1, 1926, Holben disposed of part of his estate as follows: "To my wife, Sarah J. Holben, I bequeath $4,000." Evidence was offered in opposition to the appellant's claim to the effect that Eastman, her husband, after having deserted her, went to Ohio where he lived a few years from which State he moved to Michigan, where on the 12th of May, 1900, he entered into a contract of marriage with Rachael Jennings. He died in that State on the 8th of November, 1903. On the state of facts thus disclosed the Orphans' *475
Court held that the claimant was not the widow of the decedent because of her former marriage, and the fact that her husband was living at the time of the marriage ceremony between the claimant and Holben at Salamanca. The presumption is that the contract of marriage entered into by the parties before the magistrate in Salamanca was lawful and this presumption was recognized by the counsel for the appellee and the trial court. There is no support in the testimony for an inference of intended immorality in the conduct of the parties. So far as can be ascertained or may be inferred from the facts developed they intended in good faith to create the marital relation and the evidence does not admit a conclusion that their conduct in entering into their contract of marriage and in their relation afterwards was not consistent with such purpose. It was not sufficient to successfully resist the claim presented to show that the appellant's husband was living at the time she entered into the contract with Holben. It appearing in the evidence that Eastman was married to a woman in Michigan soon after Holben and the claimant had their marriage ceremony, the presumption in favor of innocence implies that the Michigan ceremony was lawful. The appellees must overcome that presumption therefore: Wile's Est.,
If it be conceded however that a presumption in favor of the regularity of the marriage of Eastman in Michigan and of his capacity to marry before the marriage contract of the claimant with Holben has no support in law, there remains for consideration the effect of the relation and conduct of the parties after the death of Eastman as bearing on the existence of marriage. It is true that the claimant testified on cross-examination that she was never married to Holben after the death of Eastman, but the context shows that she had reference to a marriage ceremony or a formal marriage agreement. Her evidence had no reference to the course of conduct engaged in by herself and Holben amounting to the recognition of the marriage relation between them. They had been married so far as form was concerned; there was no interruption of the belief that they were husband and wife during their joint *478
lives, and there were repeated acts equivalent to a declaration that they were husband and wife. In seven deeds made while they were living together after the death of Eastman, delivered at various times between 1904 and 1922, they described themselves as husband and wife and acted in that capacity in their acknowledgments of the several conveyances. These instruments certainly show the declaration of the parties of the existence of a marital relation voluntarily assented to: Maryland v. Baldwin,
The decree is reversed and the record remitted to the court below with a procedendo.
Dissenting Opinion
I think the case was rightly decided and that the decree should be affirmed on the clear and satisfactory opinion of the court below.
These facts were established beyond question:
Appellant was married to Charles A. Eastman in Tennessee in 1871. They lived together about a year; then he deserted her, and left the state in 1883; she returned to her former home in Pennsylvania in 1886.
She never obtained a divorce from Eastman, did not know his whereabouts and never was served with any divorce papers.
On August 18, 1898 she was married to the decedent, Holben, by a justice of the peace in Salamanca, New York.
They went there to be married after the Clerk of Courts of Armstrong County, Pennsylvania, where they resided, had refused to issue a marriage license *481 because of lack of proof that her husband, Eastman, was either dead or divorced.
She had previously written to a lawyer in Manchester, Tennessee, but he could not discover any definite news concerning Eastman.
On May 12, 1900, Eastman married one Rachel Jennings in the State of Michigan.
Eastman died on November 8, 1903.
Shortly thereafter appellant learned from a pension agent that Eastman was alive on the date of her marriage to Holben; that he had since married again and had died. The pension agent, at the time he interviewed appellant, was engaged in investigating the claim of Rachel Jennings to a pension as the widow of Eastman.
Appellant told Holben what she had learned as to Eastman's being alive at the date of their marriage.
They continued to live together thereafter as they had done before, and were recognized in the community as husband and wife, but no ceremony of marriage was ever performed, nor was any contract of marriage in any form ever entered into, after they learned that Eastman was living at the date of their marriage in 1898.
Holben died in 1926. His children by his first wife contested appellant's right to claim as his widow.
No children were born to Holben and the appellant, so the question of legitimacy of issue, in favor of which the law leans most strongly (Wile's Est.,
The opinion of the majority rests upon two presumptions:
(1) The presumption that Eastman obtained a divorce from appellant prior to her marriage with Holben.
(2) The presumption of a valid marriage, from cohabitation and reputation as man and wife for over twenty years after Eastman's death. *482
(1) As to the first, it must be remembered that Eastman deserted appellant; not she him. The innocent party, who might legally have obtained a divorce did not. Eastman could only have obtained a divorce, prior to appellant's marriage with Holben, by perjury. It is carrying the presumption of innocence to strange lengths, indeed, to relieve one of the charge of bigamy by assuming that he was guilty of perjury. In view of the facts above stated it is more likely that Eastman, before his marriage to Rachel Jennings, heard of appellant's marriage to Holben and assumed that she, the injured party, had obtained a divorce from him, which we know was not the case. The appellees did prove that no divorce was ever obtained by Eastman in Tennessee; and the court below found as a fact that the appellant and Eastman were never divorced. Appellees were not required, in view of the circumstances of this case, to examine the records of every locality where Eastman lived after he left Tennessee in 1883, and prove that he had obtained no divorce in any of them. In Thewlis' Est.,
(2) If Eastman did not obtain a divorce from appellant, as the court below found, the second presumption relied upon furnishes no valid ground for reversing the decree of the court below, in view of the undisputed evidence in this case. For, in such event, appellant's marriage to Holben in 1898 was wholly void by reason of her existing prior marriage to Eastman, no matter how innocent her motive and intentions may have been in the matter. As was said by Judge PENROSE in Thewlis' Estate, supra, p. 309, in an opinion adopted by the Supreme Court: "If, when the decedent contracted the second marriage, he had not been divorced from the woman, whom, years before, *483 he had left in England, the marriage, although solemnized in church, as it was, with due religious ceremony, was void, in spite of the conceded innocence of the wife and her ignorance of the existence of any obstacle. Nor could it have acquired validity if the first wife had survived the husband, no matter how great the lapse of time or what the belief in the community in which the parties resided."
The majority opinion rests on the fact that after Eastman's death appellant and Holben continued to live together as they had done before, and were reputed in the community to be man and wife and executed deeds and otherwise held themselves out to be such. If this were all the evidence in the case the opinion would rest on a firm foundation, for cohabitation and reputation are circumstances from which a marriage may be presumed, and may be sufficient to support a finding of a marriage duly entered into. But our Supreme Court has said time and again that they do not constitute a marriage and where the claimant herself proves that no valid marriage contract was actually entered into, evidence as to cohabitation and reputation goes for nothing: Tholey's App.,
If, then, appellant's marriage with Holben in 1898 was void because of her existing prior marriage to Eastman, her relation with Holben, no matter how innocently it may have been entered into, did not constitute a valid marriage and did not become such by its mere continuance after Eastman's death. When appellant and Holben learned that their marriage ceremony *484
was invalid by reason of her existing prior marriage and that Eastman having died there was no longer a bar to their being lawfully married, they could then have legalized their relation by a marriage, which, being a civil contract, required no religious or other ceremony beyond a contract in words of the present tense uttered with a view of and for the purpose of establishing the relation of husband and wife: Hantz v. Sealy, 6 Binney 405, 408; Com. v. Stump,
"Q. You never were married to John L. Holben after November 8, 1903? A. No sir.
"Q. You were never married to anybody after that? A. No sir."
"Q. Was there anything ever said, or any agreement ever made between you and Mr. Holben after the death of Mr. Eastman in regard to your becoming husband and wife? A. No sir, we never talked about it after we came home from New York.
"Q. You relied on the marriage of yourself and Mr. Holben up in the State of New York always afterwards as being the evidence of your marriage? A. Yes sir.
"Q. And you never had any other contract of marriage with him of any kind or form? A. No sir. I didn't."
I think the case is governed by the principle established in Hantz v. Sealy, supra. There a marriage ceremony had been performed between Jacob Hantz and Mary Sealy. They had cohabited as man and wife and had children. Had executed deeds for land in which she was styled his wife and had acknowledged them as such. But at the time of the marriage Hantz had another wife living from whom he had been separated. Subsequently the first wife obtained a divorce *485 and the parties consulted a lawyer who advised them to celebrate a new marriage. Hantz said "I take you for my wife." But 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," thus asserting that they were already lawfully married. It was held that this did not constitute a valid marriage. Subsequent continued cohabitation, without a marriage contract, would not make them man and wife: Bisbing's Est., supra; Murdock's Est., supra; even after twenty years: Com. v. Stump, supra.
No other case in Pennsylvania, which I have been able to find, holds that a wedding ceremony, which was void because one of the parties was already married at the time it was performed, became a legal marriage, after the removal of the original bar or obstacle, by mere cohabitation and reputation and without a new contract of marriage, where the parties knew of the invalidity oftheir original contract of marriage and of the removal of the bar to their being legally married. The decisions are to the contrary.
Sympathy for appellant's condition should not lead to a decision which disturbs the well settled law of marriage in this state.
GAWTHROP, J., concurs in this opinion.
