Norcross v. Norcross

155 Mass. 425 | Mass. | 1892

Allem", J.

In this case, the libellant and the libellee both testified, so that the court was not left to draw inferences merely from circumstances. It was found as a fact that there was no ceremony of marriage in the presence of the libellant’s father in New Hampshire, and there was no evidence of any such ceremony elsewhere in the presence of any person authorized or supposed to be authorized to solemnize a marriage. According to the law of New Hampshire, as declared in Dunbarton v. Franklin, 19 N. H. 257, if parties enter into a contract of marriage between themselves, and live together in accordance with it, such facts do not constitute a marriage. We are referred to no statute or decision which shows that the law of that State has since been changed. The finding that there was no marriage under the law of New Hampshire was, therefore, well warranted. The law of Massachusetts is similar, and there was nothing to show any formal ceremony of marriage here. Commonwealth v. Munson, 127 Mass. 459.

If the acts which took place in New Hampshire had taken place in New York, they probably would have been held to constitute a marriage there. Brinkley v. Brinkley, 50 N. Y. 184, 197, 198. Hynes v. McDermott, 82 N. Y. 41, 46. But there was no evidence that the parties while in New York entered into any contract of marriage between themselves. The substance of what was proved is, that the parties, without being married, were *428living together as husband and wife in Massachusetts, and while doing so they twice went to New York together and continued in the same apparent relation, at one time for three days, and at another for one week. We have not been referred to any decision in New York which holds that these facts would either constitute marriage there, or afford a conclusive presumption of it; and we are slow to believe that acts which in Massachusetts were illicit will be deemed matrimonial merely by being continued without any new sanction by residents of Massachusetts while transiently across the State line. Randlett v. Rice, 141 Mass. 385, 394. Decree affirmed.

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