8 Abb. Pr. 5 | N.Y. Sup. Ct. | 1869
I wish it was in my power to aid the plaintiffs’ counsel ill their efforts to take away from our law, respecting the marriage contract, the reproach imputed to it. But that task belongs to the legislature, and not to the judiciary. As the law stands, a valid marriage, to all intents and purposes, is established by proof of an actual contract, per nerba de prcesenti, between persons of opposite sexes, capable of contracting, to take each other for husband and wife, especially where the contract is followed by cohabitation. No solemnization, or other formality, apart from .the agreement itself, is necessary (Clayton v. Wardell, 4 N. Y. [4 Comst.], 230; Cheney v. Arnold, 15 N. Y., 345; Caujolle v. Ferrie, 23 Id., 106, and cases cited; see, also, Hubbuch on Successions, c. 4, § 1).
Nor is it essential to the validity of the contract that
A written instrument, being such contract, is, of course, admissible and proper evidence. Thus, in England, the original -contract "is deemed the proper evidence of a Jewish marriage (Horn v. Noel, 1 Campb., 61); and letters or other written declarations or acknowledgments, expressive of the requisite consent, are at least evidence of, if they do not, proprio vigore, constitute marriage (Dalrymple v. Dalrymple, 2 Hagg. C. R., 59). Before the change in the law, whereby parties to suits are permitted to testify in their own behalf, the actual making of a contract resting in parol might not be susceptible of proof; but this did not render it invalid or inoperative, for it might still be established by circumstantial- evidence (authorities supra).
I am, therefore, unable to perceive any error in the charge to the jury on this subject.
It is urged, however, that it being part of the agreement proved in this_case, that the marriage should at some time thereafter be solemnized in church, the same was void, because the contract, per verba de prcesenti, constitutes marriage only when the parties intend that it should do so without any subsequent ceremony.
This rule of law is probably correct, for the reason stated by Lord Campbell in Queen v. Willis (10 Cl. & F., 534), that “it.is easy to conceive that parties might contract per verba de prcesenti, without meaning instantly to become man and wifeand it was with reference to this principle that the court, upon a request of the counsel for the plaintiffs, instructed the jury to find that “if a proposal of marriage was made by Mr. Taylor—if he understood it as a proposal of marriage, 'and it was so understood by her, and she accepted that proposal, it was a valid contract of marriage.” If, on the other hand, as is contended on the part of the plaintiffs, this was a proposition to cohabit as man and wife, with an assurance of a future mar
The contract of marriage was proved by Mrs. Taylor alone. Was she a competent witness? The rule invoked by counsel, excluding the testimony of the wife, of her husband’s declarations to her during the marriage relation, has ho application to words spoken at the very time of forming the marriage. That rule rests upon public policy, which invests communications between husband and wife during the marriage with a confidential character (Chamberlain v. People, 23 N. Y., 89).
The objection to the witness was placed upon the ground of her incompetency generally. She was admitted as a witness only in behalf of her children, to prove their legitimacy. This was excepted to, but no objection to any specific portions of her testimony was taken, nor was any point made as to the effect which should be given to her testimony in favor of or against any parties other than her children.
There can be no doubt that by the common law she iras a competent witness either to bastardize the issue <f the supposed marriage, or to establish its legitimacy (Rex v. Bramley, 6 T. R., 330; Groodright v. Moss, Cowp., 593). In the last case Lord Mansfield said, in reference to the competency of the parents, “I should as soon have expected, to hear it disputed whether the attesting witness to a bond could be admitted to prove the bond,” and he mentions a case where a mother was allowed to prove a clandestine marriage at the Fleet. No other evidence was given to show the legitimacy of the child, and a great estate was recovered upon her single testimony. By the enactment of the Code, the legislature certainly did not intend to abrogate or to restrict this '.rule. They ;removed all disqualification
The only remaining question is, whether the exclusion of the declarations of Mr. Taylor, made in promiscuous conversations, having no reference to his relations with Mrs. Taylor, that he was not a married man, was erroneous. Such declarations do not come within the rule relating to hearsay on the subject of pedigree, for none of them were spoken with reference to the status of Mrs. Taylor or her .'children. For the same reason, they are not admissible as part of the res gestes. To be admissible on the latter ground, they must be connected with the act or transaction in controversy. None of the cases cited by the plaintiffs’ counsel furnish an exception to the rule. In those from the surrogate’s court, the declarations were of a character, or made under circumstances clearly indicating that they related to the individual whose status was in controversy; In Clayton v. Wardell (4 N. Y. [4 Comst.], 230), and Matter of Taylor (9 Paige, 611), the rule stated was clearly announced ; and in Jewell v. Jewell (1 How. U. S., 119), the supreme court of the United States recognized and applied the same principle.
If the foregoing views are correct, no error was committed upon the trial, and I see no reasonable ground for complaining of the verdict. So far from being
The motion for a new trial must be denied, and judgment upon', the verdict must be entered declaring the rights of the parties, and referring it to John W. Mills, Esq., to take proof of title, incumbrances, &c.
A clause may also be inserted, appointing Calvin E. Pratt receiver, upon his giving the security, and subject, to the directions verbally stated by -me.