72 N.J. Eq. 762 | New York Court of Chancery | 1907
I have reached the conclusion that the learned trial judge erred in instructing a verdict at the trial of the feigned issue in this cause. There can be no doubt of the right and propriety of a binding instruction in the trial of a feigned issue where the evidence justifies the instruction given, but the evidence must be such that a verdict contrary to the instruction could not stand. The evidence against which the peremptory instruction was given disclosed a ceremonial marriage followed by a cohabitation of the parties as man and wife for over fifteen years, and then terminated only by the death of the husband. During that period they raised a family of children, and, except for the first year or so, resided in the same general section of this state where the alleged first wife resided. This raised a powerful presumption of the legality of the marriage against which a binding instruction could only be properly given when that presumption was clearly overcome. The power of the presumption of legality of such a marriage is found in the motives which govern human conduct and in the policy lying at the base of our social system. The conclusion of illegality involves the assumption that the parties have exposed themselves to the penal consequences of illegal acts and operates to bastardize their offspring. Their conduct during the fifteen years was a living declaration of its legality. It is manifest that the evidence of a prior marriage should be conclusive before such presumption of legality can be said to be clearly and wholly overthrown. Touching this presumption of legality the text of 1 Bish. Mar., D. & S. § 956, is as follows:
“Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality, not only casting the burden of proof on the party objecting, but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void. So that this issue cannot be tried like the ordinary ones, which are independent of this special presumption. And the strength of the presumption increases 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 form matrimonial should be such in fact, the law, when*766 administered by enlightened judges, seizes upon all probabilities and presses into its service all things else which can help it, in each particular case, to sustain the marriage and repel the conclusion of unlawful commerce.”
In United States v. Green, 98 Fed. Rep. 63, Judge Shiras held that such a presumption was not overcome by proof of a prior ceremonial marriage, unless it should be also proven affirmatively that at the time of the prior marriage the parties were free from disabilities against a lawful marriage.
The evidence offered to establish a prior marriage is not, to my mind, of sufficient power to so clearly overthrow this presumption of legality as to warrant the peremptory instruction given. In the absence of positive evidence that “Jacob Loudenslager, Elder of the M. E. Church,” was, in fact, at the time claimed, a stated and ordained minister of the gospel, the record of marriages and the diary offered in evidence carry but faint probative force.
Indeed, it is doubtful whether the marriage record is admissible in evidence as a statutory record in view of the requirement of the statute that the certificate be lodged with the recording officer within six months of the date of the marriage, whereas the record offered in evidence was made two years after the alleged marriage. See People v. Etter, 81 Mich. 570, 573. The testimony of the witnesses who were sworn in support of the prior marriage cannot properly be said to be of that character which commands absolute acceptance or affords a conclusive demonstration of the fact sought to be established.
A new trial will be advised.
