202 Mass. 500 | Mass. | 1909
This is an action of contract to recover money alleged to have been had and received to the use of the estate of the plaintiff’s testator because obtained through the fraud of the defendant’s intestate. The fraud claimed was that the defendant’s intestate, under the name of Emma E. Ingalls, induced the plaintiff’s testator, Joseph Turner, to marry her and settle property upon her by falsely representing herself to be a single woman. There was evidence tending to show that the defendant’s intestate under the name of Emma E. Ingalls was from 1858 to 1870 the wife of Nelson N. Ingalls, living with him at Lowell in this Commonwealth; that in or before 1870 he had deserted her; that his place of residence was thereafter for some time unknown to her, and that at one time he had lived in New
The point at issue as the case was tried was whether the defendant’s intestate, at the time of her marriage with the plaintiff’s testator, was capable of entering into a valid marriage. The decision hinged upon the question whether at that time her former husband was living and undivorced. This was a fact to be determined upon all the evidence.
Plainly there was sufficient evidence to support a finding that he was then alive. He was living in 1870, three years before, and there was the testimony of the witness Marsh to the effect that he received information from the defendant’s intestate in 1888 that her first husband was then living in Connecticut. In view of this evidence it was error for the court to rule as matter of law that her first husband was not living in 1874 at the time of the second marriage of the defendant’s intestate.
It is said in the exceptions that the plaintiff’s testator, before the marriage now questioned, “ stated to his children, and others, that said Emma was a divorced woman and that she had told him she was a divorced woman.” This appears to have been admitted without objection, and, being then in, was entitled to its natural probative force. Assuming that this evidence was admitted under R. L. c. 175, § 66, as having been made in good faith upon the personal knowledge of the declarant, the direction of a verdict for the defendant was not warranted. The
It is urged in support of the ruling, that the law has such a tender regard for solemnized marriage and for the assumption of innocence as to presume strongly that all apparent obstacles were removed so that its validity may be established. It has often been decided or intimated by way of dictum that death or divorce of one of the parties to a prior marriage will be presumed in order to support such a second one.
Inasmuch as Nelson N. Ingalls was absent and unheard of for more than seven years after the time to which the testimony of Marsh referred before the death of the plaintiff’s testator, so that the presumption of his death would arise, it would seem that the marriage here questioned might be upheld under R. L. c. 151, § 6, as having been entered into with good faith by Joseph Turner and followed by continued cohabitation after the removal of the impediment. This is a fact dependent upon evidence, and could not have been ruled as a matter of law. The effect of this circumstance, as well as the right which in any event the plaintiff may have in the proceeds of the insurance policies, are not before us.
Exceptions sustained.
The plaintiff was a son of Joseph Turner.
Potter v. Clapp, 203 Ill. 592, 600. Hunter v. Hunter, 111 Cal. 261. Cash v. Cash, 67 Ark. 278. Hadley v. Rash, 21 Mont. 170. Alabama & Vicksburg Railway v. Beardsley, 79 Miss. 417, 424. Scott v. Scott, 77 S. W. Rep. 1122. Montgomery v. Bevans, 1 Sawyer, 653, 666. Erwin v. English, 61 Conn. 502, 510. Lockhart v. White, 18 Texas, 102. Carroll v. Carroll, 20 Texas, 731, 742. Smith v. Knowlton, 11 N. H. 191, 196. Greensborough v. Underhill, 12 Vt. 604. Palmer v. Palmer, 162 N. Y. 130.