118 Ky. 436 | Ky. Ct. App. | 1904
Opinion of the court bt
Affirming.
This controversy involves the title and ownership of a
Since the adoption of the Revised Statutes, there is in this State no such thing as a legal marriage by recognition and cohabitation alone. All- marriages, to be valid, must be solemnized and contracted in the presence' of authorized persons or societies. Estill v. Rogers, 64 Ky., 62. But the question in this case must be determined by the laws of Ohio. Appellee alleged that in Ohio, where the parties lived, common law marriages are upheld, and can be proven by declarations, admissions, and cohabitation, and general reputation as to the fact. This is specifically denied by answer, and no evidence has been introduced to support the averment of the petition. Section 1640 of the Kentucky Statutes of 1903 reads as follows: “The unwritten or common law
In Re Taylor, 9 Paige, Ch., 611, 4 N. Y. Ch., 836, it was decided that where a gentleman introduced a female, who was previously living with him as a housekeeper, to his friends as his wife, and from that time, for a period of 11 years, continued to cohabit with her as his wife, holding her out to the world as sustaining that relation to him, and had several children by her, who were called by his name, these, facts were sufficient to authorize a court to presume an actual marriage between the parties by contract m praes&nii at the commencement of such matrimonial cohabitation, and that the acts and declarations of the man and the other attending circumstances during their cohabitation together, being parts of the res gestae, are proper evidence to show the character of their intercourse — whether it was matrimonial or meretricious. In Taylor v. Sfiem
In Dannelli v. Dannelli’s Adm’r, 67 Ky., 59, this court said: “The mere cohabitation of two persons of different sexes, or their behavior in - other respects as husband and wife, always affords an inference of greater or less strength that a marriage has been solemnized between them. Their conduct being susceptible of two opposite explanations, we are bound to assume it to be moral rather than immoral, and credit is to be given to their own assertions, whether express or implied, of a fact peculiarly within their own knowledge. The law is unwilling to bastardize children, and throws the burden on the party who alleges illegitimacy, and, in the absence of evidence to the contrary, a child, eo nomine} is therefore legitimate, and the presumption of law is not likely to be repelled. It is not to be broken in upon or shaken by a mere balance of probabilities. The evidence for repelling it must be strong,' satisfactory, and conclusive.”
It is shown in this case that John Noonan was an idle, improvident, dissolute person, who largely lived upon the bounty of his family. John Murray, the father of appellee, testifies that he had John Noonan arrested on charge of
Upon the whole case, we have reached the conclusion that we would not be justified in disturbing the judgment of the trial court.
Judgment affirmed.
Petition for rehearing by appellant overruled.