10 Cal. 533 | Cal. | 1858
Baldwin, J., concurring.
The plaintiff sues, claiming to be the widow of W. J. Cady, for her distributive share of his estate, under the statute; and for the disposition of the appeal it is only necessary to consider whether she has sufficiently alleged in the complaint her marriage with the deceased.
The complaint avers that, in 1853, the plaintiff was keeping a restaurant and public saloon in Crass Valley, and that she had accumulated in this business five or six hundred dollars; that the deceased made proposals of marriage to her, which she accepted, and consented to live with him “ as his true and lawful wife;” that in accordance with his wishes, she relinquished her business, sold her property, “ and from thenceforth lived and cohabited with him as his wife, always conducting herself as a true, faithful, and affectionate wife should do.”
These are all the averments respecting the marriage, and they are entirely insufficient. The facts alleged do not constitute a marriage. They are only primó, facie evidence of a marriage. Living together “ as man and wife,” is not marriage, nor is an agreement so to live a contract of marriage. From the character of the allegations, and the pregnant fact that the plaintiff does not even sue in her marital name, except under an alias, we are led to the inference that the arrangement between her and the deceased was intended to be temporary, and the connection one to which it would be a perversion of language to apply the name of marriage.
Judgment affirmed.
