The opinion of the court was delivered by
After the decision of this court, reported in 73 N. J. Eq. (3 Buch.) 735, the case was retried and a verdict again directed for the appellants, which was again set aside by the vice-сhancellor; this appeal is taken from his order. The reason upon which the vice-chancellor and this court relied in setting aside the former verdict seems to have been misunderstood. The situation is this: Edmund B. Ross was married to Mary Cavanaugh in 1873. If that mаrriage is valid, the respondents are his lawful issue and are entitled to the property in question under the will of their grandfather, Samuel Ross. It is not questioned that Edmund Ross and Mary Cavanaugh went through the form of a marriage ceremony and lived together as husbаnd and wife in Camden for fifteen years and until his death. The claim of the appellant is that the marriage was invalid because he had previously been married to Maria Moose in 1862. Some question was raised as to the proof of a ceremonial marriage to Maria Moose, but in the view we take of the case that question becomes comparаtively unimportant, for we think the evidence is sufficient to establish a valid marriage between Edmund Ross and Maria Moose at that time, provided they were both then free and
Evеn if the first marriage was a valid one, it does not follow as a necessary conclusion that the second marriage wаs invalid, for the first marriage may have been dissolved by divorce. The testimony of Maria Moose that she did not know and had nevеr heard of any proceedings taken against her by Ross for a divorce, and her further testimony that she had never been divоrced, is not conclusive, since it must be weighed against the presumption in favor of the validity of the second marriage, whiсh is a presumption in favor of the innocence of Ross of the crime of bigamy; of the innocence of his second wife of the crime of fornication; and of the legitimacy of his children. We need not in the present case decidе what would be the effect of the testimony of Maria Moose that she had never been divorced, weighed against the presumption of innocence and of legitimacy, if there were nothing else proved. There are other circumstаnces of great significance. Maria Moose admits not only that she made no claim upon Ross after he deserted her in 1863, hut that in
Another important faсt is the recognition of the legitimacy of the appellants by the executor of their grandfather’s will, the husband of one оf the appellants.
The proof of the continuance of the marriage relation between Edmund and Maria rests uрon her testimony, and in view of the facts stated, and of the necessary inference from Maria’s own testimony that she hersеlf was guilty of bigamy if the marriage of Boss had not been dissolved, we think her credibility also was a question for the jury.
We have thus dealt with the question as a question of fact to be decided in view of the conflicting presumptions and all the circumstances surrоunding the case. The authorities are clear that as between a first and second marriage the presumption is in favоr of the second marriage and this for the very obvious reason that the first marriage does not necessarily invalidate the second.
Of the numerous authorities it will be sufficient to cite those which more nearly resemble the present case: Dysart Peerage Case, 6 App. Cas. 489, especially the language of Lord Blackburn (at pp. 510-511); United States v. Green, 98 Fed. Rep. 63; Hunter v. Hunter (Cal.),
Counsel for the complainant contended that since the feigned issue in form put upon the respondents the burden of proving the affirmative proposition that Edmund B. Ross was capable of contracting a legal and binding marriage in 1873 and was lawfully married to Mary Cavanaugh, the evidеnce was not sufficient to sustain this burden. No doubt the form of the issue made it incumbent upon the respondents to prove that thе marriage to Mary Cavanaugh was a valid marriage; there was a presumption in its favor; whether this presumption and the evidence in its support was sufficient upon the whole to justify a finding in favor of the validity of that marriage was a question for the jury.
We think, therefore, that the vice-chancellor was quite right in ordering a new trial, and the order is affirmed, with costs.