Spencer v. Pollock

83 Wis. 215 | Wis. | 1892

Winslow, J.

It seems plain to us that, if- the circuit court was right in his finding that the relations between Jeremiah C. Tullís and America Tullis were illicit in their inception, the judgment here must be affirmed. In Williams v. Williams, 46 Wis. 464-480, this court adopted the rule there stated as follows: “A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and cannot be transformed into 'matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual matrimony by mutual consent.”

An examination of the évidence leads our minds to the same conclusion as that reached by the circuit judge, namely, that the relations between the parties were meretricious in their origin. The facts that she had borne four illegitimate children by her master before she was twenty years of age, and that she was married to Bedman about 1856 or 1857,- appear from her own testimony. It also appears that Bedman left her a year or two after they were married. She also testified that before the war she and Jeremiah Tullis made an agreement to live together as man and wife, and that they thereafter lived together under that agreement. From this testimony it is claimed that a common-law marriage is proven. Conceding her testimony as to the agreement to be competent (a point not decided), it is effectually discredited by other portions of her own testimony. She supposed that her husband, Bedman, was still living. She says she told Tullis about him, and said that she expected she would have to get a divorce, but Tullis told her that if a man went away from his wife three years she did not need a divorce, and that ’will would, bphave myself he would never forsake me.” She says: “"We were going to Michigan, and he said we would et married when we got there. ¥e never tried to get married while we lived here.” Again she says: “He promised me if I would do what was right he would take care of me, and help me take care of my other children.” These statements point rather to illicit cohabitation than to, cohabitation as husbaiid and wife. It also appears from her own testimony that she made a claim against Tullis’ estate for household labor, washing, cooking, ironing, etc., from and after 1860, and that she received $1,200 thereon.

Without elaborating upon the evidence further, it seems sufficient to say that the conclusion forced upon our minds is the same as that reached by the circuit judge,.namely, that the relations between the parties were illicit in their inception. This view of-the case renders further comment unnecessary. There is no evidence to show that the relation so commenced was ever transformed into matrimony. No presumption of such change can be indulged in, because America Tullis herself says that they never tried to get married.

By the Court.— Judgment affirmed.