105 P. 717 | Or. | 1909
delivered the opinion of the court.
This is a contest over the distribution of the estate of Henry Ollschlager, deceased; the sole question presented being whether he and the petitioner, Mrs. Henry Ollschlager, were legally married. The decedent died in Marion County March 24, 1904, leaving an estate estimated at about $21,000, of which Theodore M. Barr was appointed administrator, qualified as such, and proceeded
.The facts disclosed by the record, so far as material to this controversy, are: Between the years 1883 and 1887, Henry Ollschlager, the decedent, a resident of Marion County, took two or three trips to Germany, visiting relativés residing there, among them a sister, who, in 1887, died, leaving an estate in which he had an interest. For a number of years there had resided with this sister a Miss Mary Sabilla Hamaker, now the petitioner herein. Before taking his last trip to Germany, in the summer of 1887, at which time he received his share in his sister’s estate, Ollschlager told numerous friends about Miss Hamaker, and that one purpose of his trip was to persuade her to marry him, alluding to the fact that she had for a number of years been his sister’s housekeeper. In this venture he was successful; but on preparing to return, and after she had consented to become his wife, they found that, under the marriage customs prevailing in that part of Germany, the inconvenience and delay incident to their contemplated wedding was greater than
“When a marriage therefore has once been shown, however celebrated, whether regularly or irregularly, or however proved, whether directly or by circumstantial evidence, the law raises a strong presumption in favor of its legality; so that the burden is with the party objecting throughout, and in every particular, to prove, against the constant pressure of this presumption of law, that it is illegal and void. And it has been considered that the validity of a marriage cannot be tried like any other question of fact which is independent of presumption, because the law, besides casting the burden of proof upon the objecting party, will still presume in favor of the marriage, and this presumption increases in strength with the lapse of time through which the parties are cohabiting as husband and wife. It being for the highest good of the parties, of the children, and of the community, that all intercourse between the sexes in its nature matrimonial, should be such in fact, the law, when administered by enlightened judges, seizes upon all presumptions both of law and of fact, and presses into its service all things which can help it in each particular case, to sustain marriage, and repel the conclusion of unlawful commerce.”
It is also recognized by our statute (Subd. 30, Section 788, B. & C. Comp.) as a satisfactory presumption, until overcome, “that a man and woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage.”
3. This brings us to a consideration of the testimony by which it is sought to contravene the proofs by which a prima facie case is made out in petitioner’s favor. The first indication disclosed of any attempt on the part of Ollschlager to deny his marriage appears from the testimony, admitted without objection, of J. M. Widmer, in reference to a conversation with the decedent, concerning which Widmer says:
“The earliest I recollect, I don’t remember the year it was, quite long years back, we were sitting on the porch. He says to me, T am not married to that woman.’ He said further, T don’t want her to hear what I say, because,’ he said, ‘she is in league with a number of people here.’ I know he was at that time, I considered, in a good state of mind. He said they were trying to swindle him out of his money; that she was talking and visiting parties that was counselling her to do such a thing; trying to get hold of his money.”
The witness fixes the date of this purported statement in 1893 or 1894. In support of this position, it appears that at one time, when Ollschlager’s attorney prepared a legal document, requiring for its proper execution the signatures of both himself and wife, he remarked it was unnecessary for her to sign it, because, as he said, they were not married. The instrument, however, was finally executed by the affixing thereto of their names as husband and wife. This occurred about the year 1895. Another incident alluded to is that, after petitioner heard of her husband’s remark, she was very much agitated,
4. A careful review of all the evidence offered by the objectors leaves practically no proof to rebut, with much force, the claim of marriage, except the disclosure that no license, or record of license authorizing it, can be found. This at first would appear to contribute, much weight to the theory advanced by the objectors, and, if in a jurisdiction where marriage without a license is void, would probably be adequate for the purpose offered; but when viewed under the laws, and interpretations-thereof, in Pennsylvania, where the marriage occurred, could not have that effect. Prior to 1885 no marriage license was required in Pennsylvania. The ceremony in question took place in 1887, and it is not a violent presumption to assume that the “squire” was unaware of all the changes enacted in the laws up to that time, and, accordingly,
5. Another, and more cogent, reason, however, why the failure to discover a record- of the license cannot avail the objectors in this case, is that the legality of the marriage must be determined by the laws of the state in which the marriage ceremony was performed: 26 Cyc. 829; Sturgis v. Sturgis, 51 Or. 10 (93 Pac. 696: 15 L. R. A. (N. S.) 1034) ; Nelson v. Carlson, 48 Wash. 651 (94 Pac. 477.)
6. Under the rule universally enunciated by the courts of Pennsylvania since the adoption of the marriage'license act in 1885 (Act June 23, 1885 [P. L. 146]), the failure to procure a license cannot invalidate the marriage. Such a procedure affects only the officer performing the ceremony, who thereby becomes guilty of a misdemeanor and subject to a fine: Biesecker’s Estate, 7 Pa. Dist. R. 70. It follows that the failure to find a record of license is only a circumstance tending to question the marriage, and, unless accompanied by cogent testimony tending to rebut the presumptions of law in their favor, such proof is insufficient for the purpose here presented. The adjudications by the courts of Pennsylvania recognized, without doubt, the well-known maxim; “Concensus, non concubitus, facit matrimonium.” Broom’s Leg. Max (7 ed.) 375. One of their leading cases upon the subject is Commonwealth v. Haylow, 17 Pa. Super. Ct. 541, in which it is held that a marriage is a civil contract, and that no particular form or rule is essential to its validity. In discussing this principle, the court, at page 547, observes:
“It is true that the parties did not use the formal words of the marriage ceremony, nor was it necessary that they
Also, in Comly’s Est., 185 Pa. 208 (39 Atl. 890), the showing, made in support of the marriage, was not as clear as in the case under consideration. The wife, it appears, had been divorced from a former husband. The court, in discussing the question there involved, as to whether the marriage, under the facts presented, could be deemed valid, say:
“The decedent had satisfied himself by personal inquiry that the divorce between the woman and her former husbanad had been perfected, and he had formally proposed to her, and had been as formerly accepted. At a later day he said to her: ‘Would you be willing to marry me in this way: that you and I are to live together until death separate us; I take you to be my wife, and you take me to be your husband?’ She replied: ‘Yes, sir; until death separate us.’ Even in form this was an absolute contract. The words of obligation on both sides were in praesenti. The decedent'then asked: ‘Are you willing for that?’ And the claimant answered: T guess I would be; but don’t you think we had better be married by a minister ?’ The decedent met this objection by saying: ‘It is just as lawful in this state as if we were married by a minister. All the ministers in creation cannot make you happy or make you do what is right; but if we live together, and do what is right, we are just as lawfully married as if a dozen ministers married us.’ He was, theologically and technically, right in his position. See Richard v. Brehm, 73 Pa. 140 (13 Am. Rep. 733.) The woman was convinced by it, and she accepted his offer to take her as his wife by immediately making her abode with him. Can it be possible that any words which she might have spoken could have made out a present contract on her part more absolutely than did this act of acceptance? She had said
7. Counsel for objectors complain because of some evidence offered, but rejected by the court, the purport of which was that the petitioner is a Catholic, and that under her religious belief, she should have desired the marriage to take place before a priest. It is unnecessary to ascertain whether testimony of this character was admissable, for counsel, in offering their proof, did not pursue the course required by our statute, as announced in Sutherlin v. Bloomer, 50 Or. 398, 404 (93 Pac. 135.) As has been declared by practically every decision upon the subject, all presumptions are in favor of matrimony. The Court of Appeals of New York, in Haynes v. McDermott, 91 N. Y. 451, 459 (43 Am. Rep. 677), says:
“The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. In Morris v. Davies, 5 Cl. & Fin. 163, Lord Lyndhurst, speaking of this presumption, says: ‘The presumption of law is not lightly to be repelled. It is not to be broken in upon, or shaken by a
After a careful consideration of the testimony before us, and application of the principles of law applicable thereto, we are of the opinion that the evidence, offered in support of the objections to the final account of the administrator, falls far short of overcoming the presumption in favor of the marriage of decedent and petitioner. We deem it established by cogent proof that they were legally married, and, accordingly, hold that the petitioner is the sole heir, and legally entitled to the estate of Henry Ollschlager, deceased.
The decree of the trial court is therefore affirmed.
Affirmed.