88 N.Y.S. 874 | N.Y. App. Div. | 1904
Lead Opinion
Before considering the evidence which has been given in this case, and upon which the learned court below founded its-judgment, it is well to consider the rules of law which have been asserted by an almost unbroken line of decisions from very early times to the present, and which have been uniformly applied in making dis
Where it is admitted that the cohabitation of the parties is illicit in its origin, the presumption is that it so continues .and before it can be characterized as a lawful relation proof is required of such acts and circumstances as indicate that the relation has ceased to be • illicit and become matrimonial. It was said by Judge Vann in Gall v. Gall (114 N. Y. 109) in speaking upon this subject: “ It is sufficient if the acts and declarations of the parties, their reputation as. married people and the circumstances surrounding them in their daily lives, naturally lead to the conclusion that, although they began to live together as man and mistress, they finally agreed to live together as husband-and wife.” Authorities from sister jurisdic- , tions and foreign countries announcing the rules above quoted could be rained upon these pages wherein the same principle of law is supported and upheld. The analysis of the facts and law in the sev-eral cases to which we have called attention is elaborate and conclusive. It would be a work of supererogation to furthur analyze or make added quotation therefrom or from others. It can be said without fear of successful contradiction that the rule above quoted is the settled law of this State and it is not to be departed from or the rightful presumptions disregarded, unless the illegitimacy be established by.clear and irrefragable proof; Webster’s International 'Dictionary defines irrefragable to mean “ not to be refuted or overthrown ; unanswerable; incontestable ; undeniable.”
This, then, is the law by which we are to; test the case which has been made and which has produced the judgment bastardizing the issue of David Evans. We only find it necessary to examine
One essential and practically controlling element, however, appears in this connection. Yearly all of the witnesses who Were' interrogated upon this subject, and nearly all, if not all, of them were, testified that they understood that it was essential to a valid marriage that some ceremony be performed, either by a civil magistrate or a clergyman, and that without the ceremony no lawful marriage could exist, and that as no ceremonial marriagé was established by direct proof, the inference drawn by many of these witnesses was that it was necessarily invalid and, therefore, the relation was illicit. It is evident that, as to those witnesses who held this view, ■ the probative force of their testimony as to the, character of the rela
“ June 10 A. D. 1852
“ In Compliance with the Above Application I Issued A’ Summons Requireing the said Ebenizer A. Condit Overseer of the poor of the township of Readington to Appear Before me at the Inn of John R. Kline in the township of Clinton in said County on Wednesday the sixteenth day of June inst at two o'clock p i to show cause why the said David W. Evens should not be discharged from Confinement as aforesaid. Constable Return I served the within summons June the tenth 1852 on the Overseer of the poor of the Township of Readington by reading it to him and gave him A Copy at his request signed Morris S. Hogland. court June 16th Parties Appeared A G Richey on the part of D. W Evens Ebineizer A Condit Overseer of the poor of the township of Readington parties. Being ready for trial I proceeded with the cause Defendant Admited that no order had Ben made for the Maintenance of the child up to this date Was offered and received in Evidence an affidavit of Hannah M.- Vandeventer taken Before Isaiah P. Large, Esq., Justice seting forth that the said Hannah M. Yandeventer was on the sixteenth day of March now last past she was delivered in the City of Hew York of A female Bastard child of wich the said David W. Evens is the Father Affidavit .marked Exbit Letter A.”
By the provisions of the Revised Statutes of the State of Hew Jersey, introduced in evidence, provision is made for the apprehension of a person charged with being the father of a bastard and for the making of an order of affiliation and providing for its support. Section 4 of chapter 5 of title 32 (Stat. of N. J. p. 903) read, in evidence provides, among other things, that an application may be made by a person who has been committed to any jail or house of correction, by virtue of the act, to one or more justice or justices of the ■county for his discharge, and upon such application the justice or justices is and are required to summon the overseer or overseers of the poor to show cause why such person should not be discharged, and if no order (of affiliation) shall appear to have been made in pursuance of this act, within six weeks after such woman shall have been delivered, such justice or justices shall and may discharge him from his imprisonment in such jail or house of correction to which he shall have been committed.” The application was doubtless made under this provision of lawr, and it is evident that David Evans was for some cause, either for bastardy or otherwise, in confinement in the jail at this time. There is no evidence showing any proceeding instituted before any justice which resulted in the commitment of Evans to jail. All that appears is that an affidavit was produced purporting to have been taken before Isaiah P. Large, a justice of the peace of Hunterdon county for Readington township, which was recited in the record of Justice Huffman. What those proceedings were, who instituted them and in what they resulted there is no proof. All that appears is that Evans was in custody. Aside from the recital contained in Huffman’s docket this proceeding is not of ■consequence as it established nothing, unless the recital that there Was offered and received in Evidence an affidavit of Hannah M. Vandeventer taken Before Isaiah P. Large, Esq., Justice seting forth that the said Hannah M. Vandeventer was on the sixteenth day of March now last past she was delivered in the City of Hew York of A female Bastard child of wich the said David W. Evens
Plaintiff also produced a family Bible of the Yan Deventer family and read therefrom the following entry:
’“Births. “ Hannah Maria Yan Deventer born July 2nd, A. D. 1827.
Deaths. Hannah Maria Yan Deventer died February 21st, 1863.”
Two. conclusions are easily drawn from this entry. One that it is negative testimony solely and the other that confessedly it does not
There are divers other collateral circumstances, admissions,.etc., appearing in the record to which'the plaintiff calls attention.. We
To meet this case of the plaintiff the defendant gave evidence which is not contradicted that Hannah Maria was a respectable girl, living with her parents, who were also respectable people, and that David Evans had been bestowing his attentions upon Hannah Maria for a period of two years prior to the 1th day of July, 1851. Up to that time it is not pretended that there had been any illicit relation between them, or but that such relation as' existed was that of a suitor paying his attentions to a maid.
On this fourth day of July Evans applied to and secured the permission of Mrs. Yan Deventer to take Hannah Maria to Easton,' néar the place of the family abode, for a Fourth of July outing. The mother gave her consent, but exacted a promise from Evans that he would bring her home early. They left home and between eight and nine o’clock of that evening returned and Evans stated to the household in the presence of Hannah Maria, “ We have been' getting married.” He was asked for a marriage certificate and replied that the person performing the ceremony could not get the certificate ready for them, but that he would obtain it in a few days. This was between eight and nine months prior to the birth of Kate Maria. The next morning Evans said to the mother, “ I am going to take my wife with me this morning.”. There can be no doubt but that if this statement be true the declarations made by Evans to the household that night in the presence of Hannah Maria, followed by actual cohabitation, furnished evidence of a marriage contract as conclusive as evidence of a ceremonial marriage could have done. The relation between these parties based thereon would not be illicit, but begin in lawful wedlock.
Acting upon the statement which Evans made, he took Hannah Maria to Charles Holcomb’s hotel, Bound Brook, where he lived, and cohabited with her in the hotel, introduced her as his wife and she introduced him as her husband. From Bound Brook the testi.mony by common repute was that they went to Allentown, Penn., where they continued to live together as husband and wife. Peter Yorhees testified that in 1853 or 1851 he knew Evans and visited Mm in Hew York where, he and Hannah Maria were living together
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
O’Bbien, Ingraham and McLaughlin, JJ., concurred.
Concurrence Opinion
I concur in the opinion of Mr. Justice Hatch ; but I do not think that he gives sufficient probative force to the uncontradicted evidence as to the commencement of the matrimonial cohabitation between Evans and Hannah Maria.
It appears that prior to the commencement of such matrimonial cohabitation, Hannah Maria Van Deventer was a respectable girl living with her parents, who were also respectable people, and that David Evans had been bestowing his attentions upon Hannah Maria for a period of two years prior to the 4th day of July, 1851; and there is no pretense that there was any illicit relation between them during this time. On the fourth of July Evans applied to and
By this uncontradicted evidence it was established beyond question that Evans and Hannah Maria Yan Deventer had entered into a contract of marriage, and that their intercourse had .been in fulfillment of that contract and was matrimonial in character. It was after the intercourse between Evans and Hannah Maria had thus commenced that Kate Maria xvas .begotten and conceived. No subsequent acts of her parents could deprive her of her birthright.
O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.