68 N.Y.S. 512 | N.Y. Sup. Ct. | 1900
While it is my opinion that the defendant Snell, as an heir-at-law of, and claiming through her father, is in privity in estate with her said ancestor (21 Am. & Eng. Ency. of Law, 139; 1 Greenl. Ev., § 189; Black Judg., § 534; Herman Estop., § 139), and is, therefore, concluded by the decree of divorce against her said father in the Hew Jersey action (Lythgoe v. Lythgoe, 75 Hun, 147; affd., 145 N. Y. 641; Moore v. Hegeman, 92 id. 521), still, the law of this case on that question as settled on a previous appeal (22 App. Div. 443), must obtain here, regardless of my views, and it remains to consider the other questions presented.
The proofs show a marriage, valid under our law, between Townsend and Sarah A. Stickalorum on September 21, 1863, in London, Eng.; that they lived together until 1867; that she died on December 10, 1883, and that the defendant Snell is the sole surviving issue of that marriage. There is no evidence, nor is there a suggestion, of 'any divorce of their marital relation, simply that he left her in 1867, and that they never again lived together, never saw each other. Plaintiff’s contention that there is a failure of proof to show a valid marriage, because of want of evidence of compliance with the law of England, is without merit, since, in the absence of proof to the contrary, it is to be presumed “ that the requisites to consti
They reared a family and lived lives of apparent respectability and of virtue, until his attentions to other women, in 1885, caused suspicion on her part and an exhibition of a wife’s indignation; we have his written expressions to her, and to their children, and his reference to her as his wife in conversations with trades-people, with his tenant and with others; he held her out as his wife, and their children as his; they assisted him in his business in Paterson, often from early morning, and, also, in his store in Hew York city; over the front of his store in Paterson he put a large sign bearing the name “ T. W. Townsend & Son,” and he had but one son, the plaintiff here; he attended with her and their family, as one of the mourners at the funeral of her stepfather, who had for some time lived with them as a member of their family; we have evidence of their manner of living, their conduct and her good repute among the neighbors, all covering the period subsequent to the death, in 1883, of Townsend’s first wife. And it all leads my mind to but one conclusion, the matrimonial character of the relations of Townsend and Susanna Croot prior to the commencement of the divorce •action. If anything more be necessary to establish their marital relation, and I think not, we still have, however, his declaration made to her, in the latter part of 1885, or the early part of 1886, when remonstrated with for his attentions to other women, that “ we will try and live different; * * * we will try and live happy to
There is, to my mind, a well-defined distinction between illicit relations, forbidden because of an undisclosed disability on the part of one of the parties thereto, and such relations as are mutually meretricious, involving on the part of the woman knowledge that its character is not, and is not intended to be, matrimonial, but of a wanton and lustful nature. It is possible that Susanna Croot was deceived, was imposed upon by Townsend, and we must not lose sight of the fact that she is entitled to the full benefit of the presumption of innocence of any wrongdoing, moral or otherwise, until the contrary is shown by a fair preponderance of evidence. That presumption may be rebutted by proof of acts, conduct, declarations and manner of living inconsistent with such innocence, but that is wanting here. “ If parties enter upon a cohabitation known by them to be meretricious, the presumption of innocence * * * fails ” (1 Bish. Marr., Div. & Sep., § 961), but, as before stated, there is no evidence here to justify a finding that Susanna Croot
The matrimonial relation of the parties having been established, there can be no question now as to the legitimacy of their offspring, the plaintiff and his sisters, for by chapter 531 of the Laws of 1895, passed May 3, 1895, it was enacted that “ All illegitimate children whose parents have heretofore intermarried * * * shall thereby become legitimatized and shall be considered legitimate for all purposes. Such children shall enjoy all the rights and privileges of legitimate children,” and that was the law of this State at the time of Townsend’s death, April 24, 1896. Plaintiff, his sisters and the defendant Snell claim as heirs of Townsend, and their heirship and rights to inherit real property situate here are gov
Plaintiff is entitled to judgment as prayed for in his complaint.
Judgment for plaintiff.