57 Barb. 235 | N.Y. Sup. Ct. | 1869
I wish it was in my power to aid the plaintiff’s counsel in 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 verba 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. bTo solemnization, or other formality,'apart from the agreement itself, is necessary. (Clayton v. Wardell, 4 N. Y. Rep. 230. Cheney v. Arnold, 15 id. 345. Caujolle v. Ferrie, 23 id. 106, and cases cited. See also Hubback on Successions, ch. 4, § 1.)
Eor is it essential to the validity of the contract, that it should be made before a witness. This was held, in so many words, by Bradford, surrogate, in Tummalty v. Tummalty, (3 Bradf. 372.)
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 Camp. 61;) and letters or other written declarations or acknowledgments, expressive
It is urged, however, that it being a 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 shall do so without any subsequent ceremony. This rule of law is probably correct, for the reason stated by Lord Campbell in the 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 wife.” And 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, Íon 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 marriage, it would he a | nullity. The law requires an actual meeting of the minds j of the parties upon that question, namely, that they shall \ thenceforth, from the time of making the agreement, be /husband and wife. The point was fairly met, and, upon the evidence, was one for the jury to determine.
The contract of marriage was proved by Mrs. Taylor alone. Was she a competent witness ? The rule invoked
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 was made to any specific portions of her testimony in favor of or against any parties other than her children.
There can be no doubt that by the common law she was a competent witness either to bastardize the issue of the supposed marriage, or to establish their legitimacy. (Rex v. Bramley, 6 T. R. 330. Goodright 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. Ho 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 restrict this rule. They removed all disqualification on the ground of interest. (§ 389.) They then allowed the examination of a party on behalf of a co-party, as to any matter in which he is not jointly interested with such co-pafty. (§ 397.) The matter as to which Mrs. Taylor testified was the legitimacy of her children, the marriage being only a link in the chain of evidence to establish that fact. Surely she was not, in a legal sense, interested with her children jointly in that matter. The language of section 399 is a little obscure, but I cannot
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 gestee. To be admissible on the latter ground, they must be connected with the act or transaction in controversy. Hone 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. Rep. 230,) and Matter of Taylor, (9 Paige, 611,) the rule stated was clearly announced; and in Jewell v. Jswell, (1 How. U. S. Rep. 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 against the weight of evidence, it is fully supported thereby. Although the court might not have given full credence to the testimony on which it rests, or might have come to a different conclusion from the jury upon other grounds, that, in my judgment, affords no proper reason for dis
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.
Gilbert, Justice.]