115 Tenn. 12 | Tenn. | 1905
delivered tlie opinion of the Court.
Complainant sues the defendant, as the administrator of Joseph Smith, deceased, for the estate of the decedent remaining in its hands after payment of indebtedness and costs and expenses of administration, claiming, the same as widow and sole distributee of the intestate.
The defendant, answering, admits that it is the administrator of Joseph Smith, deceased, and that it has in its hands a fund due to his distributees, but denies that the complainant is his widow and distributee and entitled to the fund. It admits that it ,ha.s no knowledge of any next of kin of the decedent, and that complainant is the only claimant of the estate in his hands. It ex-. presses a willingness to pay over the estate to whomsoever the court may hold to be entitled to it.
The record discloses these facts:
Joseph Smith and the complainant, then Lillie Kimes, both being capable to contract marriage, mutually agreed to live together as man and wife, and in 1878, without license or any ceremony, complainant assumed the name of Lillie Smith and all the duties of a lawful wife. They lived and cohabited together, keeping house as married people, from then until the death of Joseph Smith, in 1903, and during that period recognized and treated each other as husband and wife, and were so recognized and accepted by their friends and acquaintances, and the public generally, in the community where they resided, and it was not known by
Complainant insists that the agreement made by Joseph Smith and herself in 1878 constituted a valid common-law marriage, and from that time until the death of the decedent she was his wife, and since is his widow, and entitled to all the rights in his estate allowed widows of decedents by the laws of Tennessee.
She further insists that, regardless of whether or not a common-law1' marriage is valid in Tennessee, said Joseph Smith, after having lived with her and recognized and held her out to the world as his wife for more than twenty-five years, would, if living, be estopped from asserting to the contrary in any civil action she might institute to enforce marital rights, and that his personal representative, standing in his place, is estop-ped to controvert her claim as widow of its intestate.
Without stating the evidential facts tending to prove it, further than is already done, we find that there is made out in the record a clear case of common-law marriage between Joseph Smith and the complainant, entered into in 1878, and that they lived and cohabited
The question then presented is whether a common-law marriage contracted in Tennessee is valid?
Marriage under the common law was purely a civil contract. No particular form was required to be observed by parties entering into it. A simple agreement made by a man and woman that they would live together as man and wife constituted a valid marriage.
It is said for the complainant that the common law in its entirety was adopted in this State, and is yet in force, except so far as superseded or modified by affirmative statutes; that the provisions upon this subject contained in our Code (Shannon’s Ed., sections 4189-4200), requiring parties proposing to marry to first procure license and make their contract in the pres- ■ ence of certain officers or a minister of the gospel, are not mandatory; and that valid marriages may now be contracted in the State, either in the common-law form or as prescribed by these provisions.
We are of the opinion that this contention is not tenable. The common law in its entirety was never in force in Tennessee. As a distinctive system of laws it was never adopted by our general assembly or other authority, and obtained in Tennessee only as a part of the laws of North Carolina, in so far as it had been adopted and was in force in that State when this territory was ceded by it to the federal government.
The cession act, enacted by the general assembly of North Carolina in 1789 and accepted by the congress of the United States April 2, 1790, provided that the laws in force and in use in North Carolina at the time of passing that act should be and continue ,in full force in the territory ceded until the same should be repealed or altered by the legislative authority of the territory. Nwrmely v. Doherty, 1 Yerg., 27.
And by our constitutions adopted in 1796 and 1834 it was provided that all laws then in force in the territory previous to 1796, and those in Tennessee previous to 1834, not inconsistent with those instruments, respectively, should, continue in force until they should expire, be altered, or repealed by the general assembly. Egnew v. Cochrane, 2 Head, 320.
This was the status of the common law and the statutes of North Carolina previous to the cession act,
North Carolina, early in its history, began to legislate upon the subject of the marriage relation, and prescribed the form and manner in which it should be contracted, and the statutes enacted by its legislature previous to the cession act continued in force in Tennessee, with but slight alterations, until the adoption of the Code in 1858, and are substantially carried into' it. Therefore, in order to fully understand our present statutes upon this important subject, and ascertain the intention of the legislature in enacting them, it is necessary that we examine those of North Carolina passed in the period referred to and of this State passed before 1858. Those of North Carolina and of Tennessee previous to 1829 are reviewed in the able and exhaustive opinion of this court, delivered by Judge Whyte, in the case of Bashaw v. State (1829), 1 Yerg., 177, which involved the precise question now under consideration, and, although quite lengthy, we can do' no better than quote from it. It is there said:
“The legality of the first marriage must therefore depend upon the acts of assembly of the State of North Carolina passed before the separation of the State of Tennessee from the State of North Carolinas and the
The provisions of our Code (Shannon’s Edition) and the statutes amending them since its enactment, in relation to this matter, are as follows:
“Sec. 4189. All regular ministers of the gospel of every denomination, and Jewish rahbis, having the care of souls, and all justices of the peace, judges, chancellors, the governor, speaker of the senate, and speaker of the house of representatives in the State, may solemnize the rite of matrimony.
“Sec. 4190. No formula need he observed in such solemnization, except that the parties shall respectively declare, in the presence of the minister or officer, that they accept each other as man and wife.
“Sec. 4191. Before being joined in marriage, the parties shall produce to the minister or officer aforesaid, a license under the hand of the clerk of the county court where the female resides^ or where the marriage is sol
“Sec. 4192. The clerk may issue such license to any one applying for the same, unless he knows that one of the parties is incapable of marriage, first taking bond to the State, with sufficient surety, in the sum of twelve hundred and fifty dollars, conditioned that there is no lawful cause to obstruct the marriage for which the license is desired; for which penalty any person aggrieved by the marriage may sue. (1778, c. 7, section 3.)
“Sec. 4193. The minister of the gospel, or Jewish rabbi, or justice of the peace, or judge, or chancellor, or governor, or speaker of the senate, or speaker of the house of representatives, who solemnizes the rite of matrimony, shall indorse on or append to the license the time of the marriage, and sign his name thereto, and return the license to the clerk of the county court within six months thereafter.
“Sec. 4194. The clerk shall, at the foot or on the back of each license, place the following form of certificate, to be signed by the person solemnizing the marriage: “I solemnized the rite of matrimony between the above (or within) named parties on the— day of---, 18 — .”
“Sec. 4195. If a clerk knowingly grant marriage license to persons incapable thereof, he shall forfeit and pay a fine of five hundred dollars, to be recovered by
“Sec. 4196. If any minister or officer knowingly join together in matrimony any two persons not capable thereof, he shall forfeit and pay the sum of five hundred dollars, to be recovered by action of debt, for the use of the person suing.
“Sec. 4197. In each of the foregoing cases, the party violating these provisions shall be guilty of a misdemeanor....
“Sec. 4199. All marriages contracted and entered into during the late rebellion and duly solemnized as the law directs are hereby declared valid to all intents and purposes, and the issue of said marriages are hereby declared legitimate.
“Sec. 4200. Whenever any marriage in this State may have been heretofore or may hereafter be celebrated between persons, by license regularly issued as required by law, the same shall be valid and binding in law, and the issue thereof is hereby declared legitimate, although the baptismal name of either party may be omitted in said license, and a nickname be used instead thereof, provided the parties may have consummated the marriage by cohabitation, and can be identified as the persons between whom such marriage was solemnized.” Shannon’s Code, sections 4189-4200.
It was held by this court in this case (Bashaw v. State, supra) that the statute therein considered abrogated the common law, in relation to marriage contracts and provided a new and exclusive manner in
“The more important provisions of these acts of assembly are almost entirely the same, exhibiting a settled purpose to fix and regulate the contract of marriage so as to rest or be dependent on municipal law alone, establishing a system intended to be complete in itself, evidenced by the attention paid to every particular, in form as well as substance, which the importance of such a relation, both in a private and a public view, so deservedly merited. Hence, these acts of assembly, as was intended by them, operate and effect a change in the form and substance of the marriage contract, and its solemnization, from what it was at the common law: (1) In requiring publicity and permanency of its evidence, by the registration of the marriage, and filing the license and certificate of marriage, by the acts of 1715 and 1815. (2) In requiring a.regular, certain authority, empowering the solemnization of the marriage, which is a license of a certificate of the publication of banns, by the acts of 1741, 1766, and 1778. (3) In requiring the actual solemnization of the marriage ceremony by a person properly qualified, who is a clergyman of the church of England, or a justice of the peace by the act of 1741; a minister of the church of England, a Presbyterian or dissenting minister, or a justice of the peace by the act of 1776; and a
This case was approved and followed in that of Grisham v. State, decided by this court in 1831, and reported in 2 Yerg., 589.
These cases are controlling and conclusive of this one. The provisions of the Code (1858) relating to the form and manner of entering into the marriage relation are a re-enactment of the statutes of North Carolina and Tennessee upon this subject and construed in Bashaw v. State, supra, and must be given the same force and effect. The object of the legislature in the appointment of the compilers of the Code was to have the then existing statutes digested and compiled, not to draft new laws; and this court has held that it will not be presumed that in enacting the Code it was intended to change the laws then in force but to revise and compile them into a more tangible form. Bates v. Sullivan, 3 Head, 633; Burgner v. Burgner, 11 Heisk., 733; Tennessee Hospital v. Fuqua, 1 Lea, 608; State v. McConnell, 3 Lea, 338.
And it is the universal rule of construction that where a statute has received a judicial interpretation and is afterwards re-enacted, whether alone or in a compilation or a codification of the laws of the State, the judicial construction which had theretofore been placed upon it, forms a part of the enactment. 26 Am. & Eng.
We are, therefore, satisfied, and hold, that it was the intention of the general assembly, in enacting the provisions of the Code of 1858 upon the subject under consideration, to abrogate the common law in relation to marriages, and provide a new and exclusive manner in which such contracts should be made. This has been the construction which has been placed upon the original statutes and the provisions of the Code since the decision of the case of Bashaw v. State, supra, by the courts of this State, and it should not now be disturbed. But Ave fully agree with the reasoning of our predecessors in Bashaw v. State, and if the question Avas one of first impression we would hold as there held. There are only two cases in our reports in which this construction of our statutes has been doubted in the slightest. They are Johnson v. Johnson, 1 Cold., 630, and Andrews v. Page, 3 Heisk., 667, and are all that are relied upon in the brief for complainant. In Johnson v. Johnson, Judge McKinney, speaking for the court, refers to Bashmo v. State as holding that the common law upon the subject of marriage contracts in Tennessee was abrogated by statute, and declines to express an opinion
We are, however, of the opinion that the second contention of the complainant must be sustained, upon the authority of the case of Johnson v. Johnson, supra. As above stated, these parties, Joseph Smith and the complainant, who lived together as man and wife, in Memphis, for more than twenty-five years, during all that time had recognized and treated each other as husband and wife, and were so recognized and accepted by the public at large. Joseph Smith, if alive, would be es-topped to deny his liability for any contracts which the complainant might have made which would have bound a husband in lawful marriage, such as for necessaries and also in any proceeding begun by the complainant'to enforce a right claimed by her in virtue of the reputed marital relations. This doctrine was announced and enforced by this court in Johnson v. Johnson, supra, where the reputed wife, in litigation with the reputed husband, was held’ to be estopped to deny the validity of her marriage after a lapse of twenty-five years, Judge
“For nearly a quarter of a century before the filing of this bill, the parties had cohabited as husband and wife, believing all that time that they had been lawfully married, as did all others with whom they had intercourse. And the question whether, after so great a lapse of time, such a marriage can be declared void from the beginning, is one in which not only the parties but the public also have a deep interest, in view of the consequences as affecting the status of children born of the marriage, the relations of affinity and consanguinity which may have sprung from it, the rights of property which may have been acquired on the faith of it, and all the consequential rights, obligations, and duties growung out of it.
“Upon established principles and analogies of the law, we think it may be held that under the circumstances of this case a lawful marriage for all civil purposes will be conclusively presumed, and that neither the parties themselves, nor third persons, perhaps, Avill be heard to disprove or deny , the marriage.
“It is a familiar doctrine that in all cases, except prosecutions for bigamy and actions for criminal conversation, a marriage may be. presumed, or be established by reputation after a lapse of many years. Ewell v. State, 6 Yerg., 364; Rogers v. Park’s Lessee, 4 Humph., 480.
“And the principle is equally familiar that where persons have represented themselves to be married*’ or
“Whether or not such persons can acquire rights as against others, it is clear that others may acquire rights against them. And the principle of estoppel upon Avhich this doctrine rests and which is based upon principles of morality, as well as of public policy, must be held to apply equally to both parties. The woman in such a case is no more privileged to1 commit fraud or crime than the man.
“And if they are estopped as to third persons, why shall they not, as against each other in all civil cases, be also precluded other in all civil cases, be also precluded from gainsaying the marriage? Do not the same reasons of morality and policy apply in the one case as in the other? And more especially should they be held to be estopped as between themselves, when
“In the case of Divoll v. Leadbetter, 4 Pick., 220, which was an action of trespass for breaking and entering plaintiff’s close, it appeared that the land of the reputed wife of the defendant had been taken and expended upon the rents and profits for the term of four years as the freehold of the defendant in right of his supposed wife. To defeat the title thus acquired the defendant attempted to prove the invalidity of the marriage. A marriage in lawful form had taken place, but, the parties being within the prohibited degree of kindred, it was void under the statute. It was held that the defendant could not set up the illegality of the marriage as a defense to the action; that it would be contrary to morality, as well as the policy of the law, to permit him to claim any right or exemption on account of his own crime.
“In the case of Wilkinson v. Payne, 4 Term Rep., 468, Avhich was an action on a promissory note given to the plaintiff in consideration of his marrying the defendant’s daughter, the defense was that, though there was a marriage in fact, it was not a legal marriage. On the trial it was left to the jury to presume a subsequent legal marriage, which they accordingly did; and the court of king’s bench was unanimous in refusing a new trial. Lord Kenyon, in delivering the judgment, said that, ‘though the first marriage was defective, a subse
“In 3 Phillips on Evidence (Ed. 1843), 286, it is said the usual presumptive proofs arising from the cohabitation of the parties as man and wife have not been taken away by the marriage act, and that, although the existence of license or publication of banns may be disproved, yet even in such a case there may be sufficient ground for presuming a subsequent legal marriage from the cohabitation of the parties as man and wife and other circumstances. 1 Black, 367; Peake’s N. P., 232.”
We think that the case at bar is on all fours with that of Johnson v. Johnson, and that since Joseph Smith, if alive, would be estopped to deny that the complainant was his wife in a proceeding to enforce a right growing out of such relation, his personal representative is es-topped to controvert the rights of the complainant as widow and distributee of the decedent.
The decree of the chancellor will be reversed, and one entered in accordance with this opinion.
