*1 TRAVERS REINHARDT. ' Syllabus. U. S. to subscribe the stock of liability
posed Elizabethtown and Tennessee Railroad shows he conclusively was right. question the second to inquire not whether there
Construing whether conclusive but is thé facts found presumption, there had been ex- presumption county all from its former subscription onerated another we railroad, answer it
Yes. TRAVERS v. REINHARDT. THE COURT OF
APPEAL FROM APPEALS' OF THE OF DISTRICT
COLUMBIA. 1, 2, 1906. A November April 15, 1907. No. 76. Decided rgued , predominant idea of the While the testator’s mind when discovered is to against and conflicting provisions, heeded as all doubtful might which it, given effect must be to all the words defeat of a will if the rules n done; leaving it can be and the words of law “without a wife or child not leaving children” will be construed as “without á wife and child dominant, children,” notwithstanding part.’ interest on the his estate the testator that real only through should descend his sons. woman, neither whom Virginia, man and was a resident A and who any marriage license, through, ceremony had not obtained went thought Virginia they the woman marriage by clergyman; which was a Jersey, immediately assuming name; they went to New she the man’s after- Maryland Jersey permanently, wards went to and then returned to New and eohabitated as husband and re- where lived were so many years death, joining mortgage his garded for until she in a meanwhile, him, wife; being in his his she also described wills'as and, prior later residence in New had ascertained that the to the performing ceremony person was a minister and that was there license, testimony no but cohabitation continued there married, man last her that were and afterwards assured such; qualified Held, she will he his wife executrix and that: appointed n Marriage fact, distinguished marriage, may from a ceremonial and, adultery except proved by repute, bigamy in cases of habit may required, be inferred cohabita- proof actual from continued when TERM, 1906/
Argument Appellants. though statutory reputation; require- and even- in view of tion might Virginia have in those States been invalid ments *2 license, Maryland ceremony, religious and in for want of for want of the reputation good during faith and their cohabitation in residence in Jersey, and conduct towards each other from the time New of the death, ceremony an agreement man’s established until the between the proesenti-to de become husband and pafties'per verba wife which was as Jersey status in to establish that as if made effective words of present after the had become in that tense domiciled State. App. D. C. affirmed. 25. The facts stated :are. opinion.' Arthur A. Mr. Bernard Carter Mr. Birney, whom A. Stanley, Mr. H\ Mr. Edward Newman and Charles Mr. Fill- brief, Beall were on the for appellants: more all estate, devised his real a except portion The testator small' By to four sons. a codicil he revoked theteof, his the devise Elizabeth and daughter gave his to one of parcel to his sons. Elias
In the devises his son and a making portion to his son, made them to such “his heirs and Joseph, he assigns son other to his The devises are simple.” forever several fee t)ie “their arid without assigns forever,” heirs sons, addition (cid:127) “in No in terms simple.” words fee devises are of the a mpde deliberately That the testator estate. distinction less is (cid:127)in terms of these classes devises shown two to the will, effect of which provision,” he “general the devises of the second each of class. subjects was,' more, of the devises language The ample to Qualified by fee simple. general a provision, create each thereby affected became of the devises determinable fee with ah devise taker, executory first over to the surviving of such as and the child children be might sons dead. Ab 202; Essex 18 How. bott v. Richardson v. Company, Noyes, 2 Wills, Underhill on 1274. 56; Massachusetts,
It is a construing-wills rule in. where a intent will, face of the intent- apparent upon particular intent, with such general which conflicts also-expressed v. REINHARDT. TRAVEItS 425 Argument Appellants. 205 TJ.S. 2 (7th on
latter Williams Executors Am. prevail. ed.), 333; 286; Chase & Lockerman, v. G. J. Thompson v. Young, 459; Taylor Watson, Maryland, 524; Smith Maryland, Bell, In re 68; 6 Pet. Banks’ 87Will, Maryland, The construction the will is to made from the entire instrument, including the and the codicil, intent the testator thus ascertained Jones permitted govern. v. Wright, 49; White v. Bligh, Crenshaw, 5 Mackey, two in will
Where clauses the same operate property, devising differently, it to giving different devisees, showing a different technical intention, the latter clause will prevail.
Dugan
Hollins,
149;
13 Maryland,
Manning v. Thurston,
The general intent testator being real keep of, within *3 estate the male" of descent, line to the exclusion the it is to be that was female, supposed willing he that this intent should be defeated the mere marriage of son? He might willing to measurably provide for a widow., through an to allowance equal dower, but the existence of the widow no reason.for létting affords to daughters in the heir. will
Courts or mold change so language give as effect to the Schouler §477; intention. 3d Wills, Jarman on ed., Doe Wills, 505, 507; v. How. Hance Watson, 263, 272; 8 v. U. 383, S.
Noble,
389; Hardenbergh Ray,
If affected devises to must be James, provision, for will that he awarded not be claimed appellants, him; if, left a child ruled surviving however, this point .against it has yet must unless appellants, succeed, been and his shown, married either, first, that James Elias him; survived he and brother or, second, TERM, 1906. Argument Appellants. binding brothers) into a entered survivor (the last heirs share as should their sisters agreement No such devised to James. thus property in the was not alleged agreement estoppel proved, was established. should O'Brien, woman, Sophia of the testimony
The belief, and with' wholly unworthy rejected have been peen slightest would not have case there (cid:127)this out married, was ever except James Travers evidence 1883, will of of his his mutilated recitals .of deed mortgage September and the will of were both made in mortgage, The “common law so marriage,” called, where the Maryland, ecclesia is ceremony necessary unknown, and facia Denison, Maryland, Denison union. Valid been made seems- to have New Jersey, The will rule but where a contract to marry- prevails, looser where a n - Maryland. as it is.in as important no in the had basis evidence for of-Appeals The Court ' time during the whole he called opinion in its assertion as his so wife, recognized her she was introduced her' and generally. (cid:127).'in the'community She witness sworn the woman. only certainly
The
„
married.
her own
She said
-repute
not establish
could
Pleasant,
at Point
before the
her life
death
whatever
nothing
elsewhere,
of her. life
said
Travers, and,
“
that she was called
her as his
Mrs. Tra
introduced
”
*4
far
that-" public
This falls
short of proving
vers.
recognition,”
“necessary
has declared
this.court
evidence of its
which.
in the'case of the
existence,”
marriage
ceremony or
v.
112 U.
Maryland
Baldwin,
495;
record.'
S. 490,
Commonwealth
(cited
53 Pa. St.
112
v
132
U. S.
v.
Stump,
495); Jones
2 La. Ann.
22
224;
v.
Am. Dec.
note.
Hunter,
Taylor Swett,
159,
case,
. .This
must turn
there
then,
upon
whether
question
marriage
was a
between James Travers and Sophia Gray-
valid
1865;
Alexandria, Virginia,
August
son at
REINHARDT.
v.
427
TRAVERS
Argument
Appellees.
for
S.U.
in
all
license
statute
cases a
required
The Virginia
could be no
marriage.
without it there
valid
should issue and
of
of Virginia,
decision
the Court of Appeals
The emphatic
discussion on this
subject
in
would foreclose
delivered
Mr.
in sus-
Gould,
it not
taken
Justice
ground
were
for
v.
the union under discussion.
taining
marriage
as a
Offield
Beverlin v.
250;
Bauserman v. Meister v. U. Blunt, Moore, 96 S. 82; County Gallatin, S. 47, 100 U. Fairfield
Mr. William A. Mr. Gordon, GeorgeE. Hamilton and Mr. M. Mr. J. Holdsworth Colbert, J. Gordon was on the whom brief, appellees: in in marriage Virginia
While the 1865 did not comply with State, the statute of under Davis, Virginia, .100 Offield would have been void as to the status the parties in State as to there property as the located, left that State immediately and never returned there, but. resided and.
subsequently Jersey Maryland, and as controversy property located District Colum- of Sophia'as the status the wife of bia, James Travers'at decease does not the timé depend the law Virginia. held
It has never been the law in the District Co validity to marriages lumbia denied good law, at common dicta subject and in fact on the lean toward the validity marriages, of such even when contracted in said' Holtzman, Thomas D. District. C. App. testamentary
The fact that letters were granted to her by Jersey court as the James Travers, the New widow although will, name given her conclusive proof community; that' and the reputation fact that kin heirs-at-law permitted his next of her as "wife” *5 TERM, 428 Opinion of the Court. U. 205 S. executrix take under the and devise to his “wife” qualify was conclusively recognized that she shows them as the wife of brother. their in of his will sister nun Elizabeth,
The- a bequest in E. Georgetown, Annie Travers, convent reputed as her “niece” James, should received as child evidence far as that sister is concerned, so as to reputation, Travers were man marriage, and wife. marriage constituted a under the certainly
These acts laws in that a lawful State it marriage be' of New in the District of Columbia. as such recognized v. J. R. R. 62 N. it was City Gooding, Atlantic Co. held 394, made verba marriage de con per that a contract prcesenti is and in marriage.and valid, actual Stevens v. Ste stitutes an that a law N. J. common Eq. marriage good’. 56 vens, -in did not constitute though Virginia Even it in did constitute State, agreement an lawful each other as man and accept the parties between good at common constituting marriage law, their thús (cid:127) Jersey immediately in New after said common law stay in that in residence State especially marriage, their of James there in living to the death prior into with the terms the contract entered compliance that of man Meister made status wife. v. Virginia, v. 76; Massachusetts, S. Moore, Meyer Pope, 314; U. 52 N. J. Smith, Smith v. Davis, rendered
The decision .in Offield decided, this Meister court, conclusive many construing statute respects identical Moore, supra, a marriage to that Virginia statute, with the now similar valid. under consideration Harlan delivered the opinion
Mr. the court. Justice the partition This was' or sale of originally suit brought TRAVERS REINHARDT. Opinion Court.
certain real city estate by devised Washington .the (and thereto) codicils of Nicholas Travers who in the died year 1849, four sons and leaving, three daughters.
The of that parts estate are certain remaining in.dispute 291 in lots in square and the to Washington, questions be deter- mined construction depend upon the of that will and evidence touching a alleged marriage testator, son of the with Sophia Grayson. the first item of the will
By certain lots are devised to the- son Elias testator’s "and Ins heirs and forever in fee assigns lot¿ item By the same other simple.!’ are devised to the same “which last two son, shall subject be to the general devises without, hereinafter made in provision case of sons dying a or or child children.”' .leaving second item
By the testator devised lot in- square 291, other, to Travers and his “Joseph his son heirs forever.,” two “to him lots and his.heirs specified forever, in-fee simple;” hereafter, subject lot 5 to the “being general provision aforesaid made.” third item
By the he devised to his son Nicholas and his heirs lots' in square forever certain to the “Subject general pro- made;” vision hereinafter also him “to heirs his forever, other simple,” fee real estate a square 36, and designated “ said parcel square 291, ground piece parcel ground subject to be to the hereafter made.” general provision certain the fourth item devises are By made to son- and his heirs “all “James Travers of which forever,” devises to are to be hereinafter made.” subject general provision at the close of1the fourth follows, item, Here “general “With to several estátes referred to: provision” regard my hereby to several it is sons;, hereinbefore devised' declared I order and as a my will, direct, provision, be and do or .a leaving that if sons should die without any my a'wife, death, his then his herein child or children at estate devised living those him, to' thereof excepting portions expressly saving to be fee which simple,’ and so named granted TERM, 1906.
Opinion of the Court. think shall in- fit, as dispose go, can sell .and and the child ór sons children my vested in fee, surviving such child children dead, representing may of such as his my shall, if either of sons father—but share of the children, or without child or wife either with death, leave her dower be entitled to rights privileges.” wife shall such in Will devises for certain the benefit was followed This well as to the but will, several codicils daughters, detail. necessary provisions givé 26th, 1848, the testator dated June revoked By codicil, “And in I lieu thereof do will, providing: certain parts all of said lots or part lots, and devise so hereby give and other described, improvements the house aforesaid *7 his son and to my heirs, subject, to appurtenances, and and contained in the will restrictions stipulations the express I all wherein declare that codicil, every this is which to by the use the words real estate devised my (cid:127)portion beheld such devisees for and then by life, shall simple,’ tin fee as contained therein stipulations to restrictions according by said will.” declared it here, below, as was the courts that the contended It is “if any my sons provision, above general words child, or children without leaving living die should “if read any my as his should be death,” interpreted at and child or a wife children die leaving should sons by asked,, interpreta- death.” The court thus 'at his living the word of “or” in the substitute “and” tion, place to sentence. above will,'and all provisions ascertaining,
Looking testator, we may, perceive we the intention of the no best as himby used the words otherwise interpreting reason than ordinary, meaning. their natural according general, that the dominant by appellants It is insisted pur- his real estate of the testator was that should descend pose his sons, and that their daughters descend- through And the have no share therein. doctrine is in- ants should TRAVERS REINHARDT. Opinion of the Court. 17. S. “ of a idea- testator’s' predominant
voked that mind, when all against is to be heeded doubtful discovered, and'-con which themselves might it; defeat provisions flicting intent being intent particular inconsistent, general former—;the .(the must be sacrificed to the particular) latter 476. This Wills, Schouler general intent.” doer § other controverted, but there are cardinal rules in trine is not ' wills which must be Mr. Jus regarded.- the interpretation, said that court, for this effect must be Story, speaking tice “ will, by words óf a rules of it can if, law, to all the given occur in a will And where words and' plain done. them, is to be attached to unless the testator ordinary sense in some other sense.” Wright them manifestly applies 204, 239. “The rule great 10 Wheat. first the' Denn, which said-Chief Justice “to all wills,” Marshall, exposition is that intention must of the testator bend, rules other will shall it be consistent provided in his "prevail, expressed 75; 6Bell, Finlay Smith v. Pet. v. King, rules of law.” substance, The same ex- Pet. thought, Eldon Chancellor in Crooke De Vendes, Lord pressed He said that “where Words'have once got Ves. it is very conjecture dangerous settled, legal meaning,
clear, no than better foundation it is that, upon simply against could have meant to do one the testator thing, improbable, done another bther words, using having thing, one set of relation to him.” in the same degree words, persons *8 “withoút or the words wife leaving clear would seem -It they first the above general' where children,” lchild appear times in three They appear chosen. purposely were provision, We think is not' doubtful. meaning usual their wiil, and the would not-be The court not “and.” “or,” meant testator the the whole unless substitution proposed the making justified requires, beyond question' plainly of the context testator. will of the the effect to in order to be done give .to “without leaving prevision, words, That the the general is "to- selected deliberately were children,” child or or a wife TERM, 1906.. Opinion of Court. some extent shown the last sentence the first item of the “which will, two devises shall be subject to the pro- vision made in hereinafter case any sons dying a wife or child or leaving children.” We do think not that the testator used “or,” the word thereby intending convey same as would be thought expressed by “and.” We concur Court of Appeals, by Chief Justice speaking Shepard, the words holding are question unambiguous, obvious, ordinary must not con- be defeated meaning D. jecture. C. App. important
The remains question whether James Travers, of the testator, the son died a wife or a child or children. leaving did,, If then he the decree below must be affirmed. bill original
The averred that James Travers died in 1883 “without widow or lawful child or children or descendants o'f a child children him.” This averment was surviving in the denied but in specifically answers, progress the defendants, cáuse 'children of the sisters of James Travers, amended their answer and that he him left alleged surviving widow, V. “his now Sophia O’Brien, who Sophia his lawful was wife at the time his who death and had been many years his-lawful and he left one prior thereto, Annie E. Travers, one of child, herein, the defendants who was lawful child.” The issue thus made constituted princi- matter to which proof of the courts pal Both directed. held that below under evidence Sophia V. was be deemed the lawful wife of James the time his death. were born them, Children but died very It is young. to. left no conceded child them, Annie E. surviving Trayers an child. being adopted appellants
The insisted the case and now insist throughout relation between James Travers V. was of a any time one matrimonial cohabitation, not at but an cohabitation, or meretricious which illicit did not'create relation husband and wife. careful of all scrutiny the evidence toas
Upon,a alleged *9 -y. TRAVERS REINHARDT.
n Opinion of the Court. 205 IT. S. we facts following may think
marriage regarded established: in Travers, 1. James whose domicil was the District Columbia, and whose domicil was in Sophia Grayson, West Alexandria were in on the Virginia, fifteenth together some sort (exactly when August, marriage ceremony was by what does not a performed appear) friend then woman, whom the about seventeen years age, at and without the time was a parents, supposed minister, living in a entitled officiate She capacity thought marriage.
it was a real a did not marriage minister, he although pro- license or have to solemnize the of these any duce marriage It must be taken the evidence that he was not parties. By minister. the statutes of in then it was force Virginia “Every this State shall be under a license
provided: solemnized in the manner herein provided, but no marriage any persons solemnized be ^authorized to professing shall the same be deemeu' solemnize to be adjudged void, ¿ccount validity any thereof be in way shall the affected on nor authority want of such persons lawful be consummated with full belief respects all other married, of the so or either of- persons them, part on' lawfully joined have'been they marriage.” after Immediately
2. the affair 'at the parties— Alexandria after that Woman, occasion, from and the name assuming Shrewsbury, Travers—left and went to New Virginia Mrs. husband and a short Jersey, wife, remained for where, Belair, Mary- went Harford time, County, after which to. wife, as husband and at a rented
land, there, place. living farm in County, In Talbot purchased 1867 Travers lived with said until some time he Maryland, on which and, sold, farm account Travers’ when that Point Pleasant,' health, they removed lived on the Talbot there, County having property
purchased years. for more than fifteen farm, as husband and year the latter part at Point died Pleasant voe. ccv—28 TERM,
Opinion of the Court. his death years woman, five after the to be and claiming Travers, the community the as widow of James recognized lawyer ceremony married a the Philadelphia, per- being the Catholic Church in Point formed at Pleasant. the, 4. From fifteenth of to his on August, up death, - day November,
the first 1883—a of more than period years—Travers and Mrs. continuously Travers co- eighteen as husband and habited all that period they During wife. as if were husband lawfully uniformly acted and and wife, out as relation; held themselves and all sustaining beyond were as husband and wife in the several question regarded in which they communities lived after Alexandria leaving 1865. There is no one proof any contact with coining them otherwise. them regarded six years
5. About five or after the latter date Mrs. Travers time, for the first learned, Travers’ “friend” who had ceremony Alexandria was not a officiated minister. when asked, her this giving deposition, She question: “Q. After.you discovered, years some four or five you after live with Mr. had not been Travers, you went to married any him to did ceremony, he ever make according to A. you Always. to Poor he regard? fellow, promise have it all Mr. We Birney: object to that. right—— would say? what did he A. he would Q. Well, always say And that it and we were as much as if just was all we had right, married married before or a minister.” priest Upon been basis husband and continuously of their .wife being rested to each other to the death of Travers. up their relations Mrs. Travers as his 6. That Travers recognized wife, and from'many (a) as facts: In such, appears her out held mort- to secure the executed'September 27th, balance of gage Talbot money County due purchase farm, mort- body are both in the described, gagors mortgage his Travers, “James and V. wife,- Harford Sophia and in the certificate of Maryland,” the ''State County, Travers, as “James Travers Sophia acknowledgment TRAVERS v. REINHARDT. (cid:127) óf Opinion the Court. U. S. wife,” acknowledged and she signed mortgage (6) 3/mutilated, By V. Travers. dated holographic he Travers, February 8th, signed gave, “ my Sophy to wife Virginia Travers,”
devised bequeathed to furniture, etc., have and books, pictures, all his household executors, her to administrators and her, to hold same improvement income forever; also, use, assigns her. “ have and to hold farm, house and the same of his dwelling and from and life; her natural after the during her for and I and bequeath,” etc.; my give said decease “to bequeathed he devised and further, my which, gave, use,” for her sole all the rest and Sophy Virginia *11 estate, real, or personal mixed, of the testator’s of residue toor which he possessed, which he died seized and be should That time his decease. at the of will concluded: entitled nominate,and my I said wife sole appoint executrix “Lastly, do (c) will wilhand testament.” my By last dated at of this Jersey, 5th, New .October Pleasant, 1883, witnessed by Point Travers devised to his brothers and sisters three persons, in District and the of property his interest Columbia, all “ while my' widow, she remains all wife, my property my to and character not disposed hereinbefore every description power alienation, full how- disposition provided, in case our her, survives that all the daughter ever, to shall disposedof prior .my decease be arid property wife’s in of our property event daughter, become .said another it is will my then, my contracting marriage, wife’s own as of her one- enjoy she shall and- possess right, and that the other two- of the then property remaining, third myi held in trust for shall be invested and daughter thirds her . . majority. Annie, paid upon attaining her hereby my Sole Executrix this last my I appoint duly will was before Surro- proven testament.” "That Mrs. of Ocean County, _partly gate b'Jr “Sophia Virginia officer of the certified named, county executrix therein Ocean, proved TERM, 1906. Opinion of the Court. duly me and she is authorized same before to take upon herself administration of the estate of the testator agreeably duly will was said will.” That filed and in recorded the proper in the District of Columbia. office facts,
In of these view question whether the woman was to be deemed the lawful wife of James Travers at his death the time of fact,'as Marriage distinguished be may from a ceremonial various marriage, proven ways. the best evidence of the Of course con- exchange marriage would parties sent between come from those who were when present mutually personally to take agreed each husband and and to other as assume all the responsibilities But a that relation. legal may be marriage established in It ways. may shown what is other called habit br repute; at common law, Kent Referring marriage says: “The con- may sent of declared before a magistrate, or before or witnesses, subsequently confessed simply or acknowl- may even be. inferred from edged, continual as husband reputation cohabitation and wife, except actions civil for.adultery,.or public cases of prosecutions for. when actual adultery, bigamy proof is re- 12th Kent, ed., quired.” the first
Naturally, must inquiry have reference to what Alexandria, Virginia, occurred when, the woman faith, we think—that good there was supposed—in real, valid *12 and between her James Travers. But marriage we assume this only of case that that for the purposes marriage not a of under the laws valid one We do this in Virginia. deference of the Court of Supreme to the decision of Appeals in Virginia in which Davis, 250, 263, 100 Virginia, v. that con court, Offield above statute of that Commonwealth, held it to struing be had directory, and mandatory, abrogated the common law in and that no in force Virginia, marriage attempted mar would be held there, it took valid riage, place there, unless license; it have been under a be shown to and solemnized ac Commonwealth, to of statute that will We also cording v. TRAVERS REINHARDT. 437 Opinion 205 U. S. Court. of
assume, purposes decision, but present ^nd because the earnest contentions of the in plaintiffs error, in Maryland, cohabitation as husband and wife, for more than and years, fifteen of that relation in recognition where State, communities resided did not entitle and the woman Sophia regarded lawfully State as husband and wife. We make this assump also because it here that James Travers and appears tion Grayson did not become husband and wife in virtue and it has ceremony, because been decided religious “ by Maryland the Court that in that State there Appeals cannot valid be a without a religious ceremony,” “ a bemay without the although marriage competently proved witnesses who testimony of were ceremony.” present Richardson v. Smith, 80 Maryland, 93. That court said also case: “The law has wisely the same provided may by cohabitation and ac proved general reputation, when it will be exist, inferred that a knowledgment; these ceremony has taken will not be place; this religious proof invalidated because evidence cannot be obtained of time, this place manner the celebration' of the On marriage. unnecessary we than from point think do more quote ‘Where Redgfave Redgrave, Maryland, 93, v. 38 97: live ostensibly as man themselves together demeaning other and are into society towards each received such, en- treated their friends and relations as having being will,, morality titled to that the law favor status, (cid:127)1 have been married. decency, presume legally 2 Bl. 517; W. Taylor, Evidence, Hervey Hervey, §§ Jewell v. 877; 1; Jewell, Goodman v. L. J. Ch. Goodman, mar- way most usual How. Indeed, proving and in prosecu- criminal conversation actions for riage, except cohabitation reputation, tions for bigamy, & Boone 50; John. Bowen, Sellman Gill acknowledgment. ” con- may refer, We this 607.’ Purnell, Maryland, Court of the District Columbia, to what the nection, Supreme *13 TERM, 1906. 438 Opinion of the Court. who was learned in the law by Merrick, Judge speaking 18 D. 66: “In' Holtzman, C. 62, said in Thomas v. Maryland, law it is apparent not at all that ever first place, ecclesioewas necessary pur de marriage a facie Court of issue. It is true pose legitimating the years last four or five has decided in the Maryland Appeals is not but that decision was the law, binding that such a down Blackstone that verba per is laid marriage us. It the intervention of a is clergyman without a-legiti de prcesenti say Story And both and Kent that according mate marriage. in this country a understanding to the universal marriage the intervention of verba de per prcesenti, clergyman, makes a cohabitation, legitimate followed marriage.” 411, 413, v. Dick. Ch. Voorhees, In the Court Voorhees New said: “Two essentials of Jersey Chancery’of valid . . and consent. capacity are Marriage marriage and no ceremonial is indispensably requisite civil contract, per A contract of made verba de prcesenti marriage its creation. and is valid,” actual O’Gara marriage amounts to an quoting City N. In Atlantic Y. 296. 62 N. Gordin, J. Eisenlohr, Court of Errors and Jersey the New said: Appeals 394, 400, Vap. Vice Chancellor Fleet “In case concedes Voorhees made verba de per prcesenti amounts a contract valid, and is actual case of Stevens an Pitney Ch. Vice Chancellor de Rep. Stevens, Dick. to the same subject law on the abun effect, clares the citing authority.” dant us to were the
This consider what relations of these brings Maryland farm after selling up after taking That Jersey New 1883.- their residence cohabita- after wife, 1865 and tion, husband while as lived in -after they continued without Maryland, became domi- change Jersey ciled in to the New death up Travers; out Jersey held themselves hus- lawfully band themselves and recognized were recognized community in the sustaining relation, manifest from v. REINHARDT.
TRAVERS *14 Opinion of the Court. 205 U. S. explain'
all' It to impossible the evidence and circumstances. in Jersey while their conduct towards each other living each other as theory they other than that regarded of husband and wife. matrimonial relation legally-holding words an It is no witness proves express signifying true that to live parties between the actual contract _ agreement No heard them say, and witness as husband wife. together ' “We have to other, in in of each agreed words, presence such,” live as wife, take each as husband and and together other they left each from the time other, But their conduct towards in 1883, in to the death James up Alexandria 1865- they had agreed, of no other than interpretation admits be husband And that outset, to and wife. agreement, from to the death shows, faithfully kept up far as this record so Trayers it is that James Travers. When remembered James much they were as married as woman assured the or-minister; in his by if been married priest had as his that in the*holo- wife; she is described of 1867 mortgage wife; as his that in of -1881 he her recognized will graphic .his in New he referred to her made his domicil will, last to while she and devised her wife, property as his did contract and his widow and another marriage; remained his -will, the sole executrix of her. describing that he made her fact when these facts wife; are-supplemented as in intermission, faith, they' good lived together, as years wife, more than husband for eighteen openly, that he and the woman had is needed to show nothing morek the relation husband and wife. mutually to sustain agreed to they' in cause are be held as Under evidence having; the. verba per de prmmti to the death of agreed prior become husband and wife.. them as husband Jersey law New recognize Did the their residence that State they took lived up wife after husband and wife were there faith, good together, the authorities cited this question Upon such? recognized affirmative. be amswered must TERM,
Opinion of the Court. We that even opinion are alleged would have been as invalid Virginia want of regarded license, had there, remained and invalid in Maryland for ceremony, want of a had remained in religious that State, Jersey it was a valid in New deemed after James Travers and the woman as husband and Sophia, took up there and lived residence permanent that rela- together tion, faith, openly, continuously, good up the death and in by themselves Travers—being community as regarded husband wife. Their towards conduct each other in the eye *15 in while New taken in public, connection with their in previous association, equivalent, law, to a declara- tion by each that did and during joint lives were to the relation of husband and wife. occupy Such a declaration aswas effective to establish the status of in New marriage in as it had been made words of Jersey the present tense in that after became domiciled State.
The views we have find in expressed support the authorities. v. S. Moore, 76, 79, In Meister U. it was said an in- formal verba de by per contract marriage prossenti constituted law, a common and that a statute simply marriage requiring in “all entered into presence be the of a marriages magistrate, by or that it a preceded license, or be or clergyman, publica- by bánns, witnesses,” may tion of or be attested be construed “ directory, as instead merely treated as being destructive of tp law a-common form right marriage relation words of assent.” present
In Maryland Baldwin, U. S. 494, 495, the court to say that,-by said: “It the law proper of Pennsylvania, where, all, if at were parties married, ais civil may be de contract, and verba per praesenti, made is, by words in the present tense, attending ceremonies, civil. Such religious many is also the law other States' in statutory the absence of It is regulation. the doctrine common law. But where no such ceremonies are required, no record is made to attest the-marriage, some public recogni-
TRAVERS v. REINHARDT. Opinion Court. as evidence of its' existence. The necessary pro- tión of it is and their children considerations of tection of the parties and it may this require public recognition; public policy can and known way by men, in which be seen such made as man and each other as treating living together other in the of third as each presence being speaking the relation documents relation, declaring such, deeds, wills, them whilst executed living together, formal instruments.”- and other Macl. & Rob. which Hoggan Craigie, 942, 965,
So Cranworth, Lord Chancellor to contracts of referring necessary verba de said: “It is not per preesenti, prove contract it is the case are such as itself; sufficient if facts of to lead to evidence such contract taken satisfactory having this place; upon principle acknbwledgment parties, their conduct towards each and the bther, repute consequent sufficient to . it, may Every- . prove marriage. and relevant an therefore, pertinent like the thing, inquiry yrhich present previous consent present, indicates known as the parties.” Campbell Campbell, Again, Case, 182, 192, Breadalbane L. R. Sc. Lord App. 196, 211, said: “Habit and Chancellor Chelmsford arise from repute openly and’constantly, if.they parties cohabiting together *16 and and were husband so themselves towards conducting in the society each other for such a time neighbor- length which they hood of are members as to belief produce In Lord that are married.” the same case really Vfest- bury,. strictly after not be correct observing might with and a mode of con- speak repute cohabitation habit said: “It is rather a mode of mani- tracting marriage, making which the will infer to fest to the world that tacit consent law If I I have been were to what already express interchanged. from on I subject
collect the different the should opinions be inclined the rule rather to express following language: wife is a that cohabitation as husband and manifestation of the consented to contract inter se. parties having relationship OCTOBER, TERM 1906. J., Holmes, dissenting. 205 TJ.S. to the daily It is a forth manner life holding world and demeanor, habit, man and woman by conduct, have to take each who live other agreed together mutual to stand in the relation of husband and wife; and and whom live, by. those among when credit is given relatives, to these friends, acquaintances, neighbors, rep- then conduct, and this continued habit and repute resentations the cohabitation. The are upon arise and attend holden parties wife; be husband and law of Scotland reputed (cid:127) of circumstances this combination as evidence accepts lawfully has been In marry consent interchanged.” says: on Relations, Eversley “Marriage may Treatise Domestic by their between conduct proved also towards first need not be other, proved; and the consent 'it is suffi- each of the case are such as to to satisfactory facts lead cient having place; a contract taken the acknowledg- evidence such towárd other, their conduct each ment of the parties, it, may be sufficient to a mar- prove consequent repute ” (Harriman’s also on 41. See Greenleaf Evidence p. riage’ notes; 462, Wigmore Evidence, ed.), §§ §§ n cited. and authorities discussion citation of authorities, Without further we courts below did not that, that the err under holding adjudge Mrs.'Travers, and the who James Travers lived evidence, constantly him for more and-openly his wife than to be deemed law, were--in' husband years, eighteen his'death, It time of results at the the Court the decree of of. affirm.1 Appeals, this from view Court of the Supreme District, must the decree of itself ing be affirmed.
It is so ordered. Moody Me. Justice did McKenna Me. Justice case. this in the decision of participate Me. Justice Holmes, dissenting. which I case think I ought
I feel somé doubts this *17 v. REINHARDT. TRAVERS dissenting. Holmes, J., it ad- assumed, I to be it must be understand state. lived to- Grayson Travers and mitted, that James when years, themselves gether many calling for man. that probably they and wife knew
they were not man from This condition lasted things were not naan wife. to which marriage Virginia the time of pretended referred for its until justification,
their cohabitation lived in they Mary- death. long Travers’ So year if had they attempted is until some time land, that mutual legitimate simply agreement union more make -their done it. Therefore the of-James could not have they instances his wife that be laid during period may calling Sophia n on one side. Jersey moved to and there he died Travers New Just before he of his wife Maryland, spoke his will. As made it, I .understand the decision that he was instrument, and as fact that wholly recognition rest this married must may be made the inter- in New a how I do not see these facts can magistrate. of a vention of marriage be evidence might Habit and enough. repute they contract, But must be .evidence unexplained. when When an to have effect. appellation informal, however eighteen years con- nearly been used for to have shown last continues of .justification scious want used how the fact that the parties I do not see of lifetime, month that last month’s use evi- line can make crossed a state have made a contract last moment parties in that dence could made in this way. time for the’first which then have a contract should have been made in imperative It if both had supposed even Jersey. Therefore knowing contrary instead it married were Jersey To live in New and think not have mattered. would marriage by law married does constitute are you nothing might were else the case If there State. facts the belief, but on these it was marriage, be evidence original ground. to the entertained, inadequate 'referred *18 TERM, 1906. Statement of the Case. 20SU.S. Collins v. N. J. A Voorhees, 47 555. void contract is Eq. made over or validated acted again being upon at a time when a valid contract could be made. When a void contract is acted upon, remedy, when there one, not on the but contract, for a quasi-contract, meruit. quantum upon There is no such alternative when a marriage fails. QUINCY AND CHICAGO, BURLINGTON RAILWAY COM- PANY v. WILLIAMS. CERTIFICATE FROM THE CIRCUIT COURT OP APPEALS FOR THE
< EIGHTH CIRCUIT. Argued
No. 14, 15, 1907. March April Decided Appeals Under 6 of the Circuit Court of Act of § March 26 Stat. 826, the certificate of Appeals questions the Circuit Court of propositions concerning of law which it present desires instruction must law, point clearly stated, a distinct which can be decided without passing weight upon the or effect of the question advice on which the arises, presented and if not so this court is without jurisdiction; and question where practically brings up case, certified the entire and this ' pass upon validity court is asked to of a contract and indicate what judgment be, the final should the certificate will be dismissed and the questions not^answered. This case is before the court question certified by the Circuit Court of Appeals under the sixth section of the Act. of March Judiciary 3, 1891, providing every case .that within its appellate jurisdiction a Circuit Court of Appeals may certify to this court any questions or propositions of law which it concerning desires instruction for the proper decision of such case. 26 Stat. 826, c. 517.
Accompanying certificate is a detailed statement of the case as disclosed by the evidence. It is towell that state- give ment in full. It is as follows: