94 N.J. Eq. 426 | N.J. | 1923
The opinion of the court was delivered by
The presént appellant, John C. Tyll, filed his petition in the court of chancery seeking to have a ceremonial marriage entered into between himself and the respondent on June 23d, 1919, declared null and void, upon the ground that at the time thereof there was a subsisting marriage between the respondent and one Louis Bozear. TJpon final hearing the petition was dismissed, and Tyll appeals.
The undisputed facts necessary to be considered in determining whether the present appeal is well taken are as follows: The man Bozear, referred to in the appellant’s petition, entered into a ceremonial marriage in the city of Newark on October 16th, 1910, with one Eraneiszka Naszka. So far as is known there -was no issue born of this marriage, and shortly after it took place the parties -separated, and the Naszka woman returned to Austria, which was the place of her birth and original home, and has not been seen or heard of since the year 1911, so far as the testimony shows.
On September 1st, 19.16, approximately five years after the Naszka woman had been last heard of, the man Bozear and the present respondent were married in the town of Chatham, in this state, by the Rev. R. A. Mahoney, and shortly afterward Bozear left the respondent, and they have not since lived together. A child was born of this marriage.
On June 23d, 1919, the appellant and the respondent were married, in the city of Newark, by the Rev. E. Rolinski, and they lived together as husband and wife until some time in the month of May, 1921. A child was born of this marriage.
We think it must be presumed that the ceremonial marriage between the man Bozear and the woman Naszka, in October, 1910, was a valid oné. This being so, the question arises, What was the status of the marriage between Bozear and the present respondent ? As has been stated, the FTaszka woman returned to Austria in 1911, and has not since been seen or heard of. The law ordinarily presumes a continuation of life until seven years have elapsed after a person has been last heard of. But this presumption is not a conclusive one; and, where that presumption would, as in the present case, rendeithe party against whom it is raised guilty of a bigamous marriage, and would stamp his child as a bastard, the presumption of innocence of crime overcomes that of continuance of life, even though seven years have not elapsed. And it was for this reason that this court held, in the case of Vreeland v. Vreeland, 78 N. J. Eq. 256, that where a former husband of the defendant in that case had disappeared and been unheard of for a period of more than three but less than four years, at the end of which time the defendant had remarried, the second marriage was presumed to have been a lawful one, the presumption of continued life having been overcome by the presumption of the innocence of the defendant of the crime of bigamy. Under the doctrine of this case, therefore, the marriage between Bozear and the respondent must be presumed to have been a valid one.
This being so, what is the status of the present parties? At the time of their marriage the respondent had a husband living, from whom she had not been divorced. She was therefore not competent to enter into a valid marriage contract with the appellant, and the attempted marriage between them was void. Consequently, the appellant was entitled to the relief he sought, provided that when he married the respondent he was ignorant of the fact that she then had a husband living, from whom, she had not been divorced. If he had this
Eor this reason, we think, the decree under review should be affirmed.
For affirmance—-The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.
For reversal—None.