Yardley's Estate

| Pa. | Feb 16, 1874

The opinion of the court was delivered, February 16th 1874, by

Agnew, C. J.

There is no sufficient evidence of marriage in this case. The alleged cohabitation is partial and unsatisfactory, and the reputation of marriage is divided, the bulk lying on the side of singleness. The address upon the envelope, in the absence of the letter itself, has no weight, especially in the absence of a correspondence such as attends married life, and in the case of a person habituated to writing, as Howard Yardley was. The case depends on the alleged cohabitation and reputation of marriage. But it is a misnomer to call the visits of' Howard Yardley to Elizabeth Sithens, cohabitation. It was lacking in its chief element, constancy of dwelling together. His habitation was evidently at the house of his own family which he had never left and where he continued until his death, and was buried from it — the place where he was taxed, and from which he voted. Elizabeth Sithens was unknown to his relatives, except as his shirtwoman; never visited them, and did not follow his remains to the grave. His visits to her were evidently of an irregular kind, and though frequent, and continued for years, they bore no resemblance to married life. Loose notions seem to prevail as to what cohabitation is. It is not a sojourn, nor a habit of visiting, nor even a remaining with for time. None of these fall within the true idea of cohabitation as a fact presumptive of marriage. Neither cohabitation, nor reputation of marriage, nor both, is marriage. When conjoined they are evidence from which a presumption of marriage arises. The legal idea of cohabitation is that which carries with it a natural belief that it results from marriage only. To cohabit, is to live or dwell together.; to have the same habitation; so that where ' one lives and dwells, there does the other live and dwell always with him. The Scotch expression conveys the true idea, perhaps, better than our own — “ the habit and repute” of marriage. Thus when we' see a man and woman constantly living together — where one is dwelling there the other constantly dwells with him — we obtain the first idea or first step in the presumption of marriage; and when we add to this that the parties so constantly living together, are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of a marriage. Marriage is the cause, these follow as the effect. When the full thought contained in these words, cohabitation and reputation of marriage, is embraced, we discover that an inconstant habitation and a divided reputation of marriage, carry with them no full belief of an antecedent marriage as the cause. The irregularity in these elements of evidence is at once a reason to think there is irregularity in the life itself, the parties lead; unless attended by independent facts, which aid in the proof of marriage. Without concomitant facts to prove marriage, such an irregular cohabitation and partial reputation of marriage, avail nothing in the proof of marriage. It is precisely in this respect that this case has no resemblance to Yincent’s Appeal. Had that case rested on cohabitation and reputation alone, no marriage could have been inferred — the “ double life” and divided reputation of marriage would have decidedly condemned the conclusion. But De Amarelli’s conduct was marked by so many circumstances disclosing a true marriage, that when linked with the pure unspotted character of Catharine Evans, her wife-like conduct, and the reputation of their marriage beginning with facts tending to prove marriage at the very outset, the evidence of marriage was complete; while the reasons accounting for inconstant cohabitation were strong and peculiar.

It is argued here that the meretricious intercourse, to be inferred from the early relations of .these parties, ought not to forbid a conclusion that the marriage relation existed afterwards, and we are referred to (among others) the case of Campbell v. Campbell, Law Rep. 1 Scotch Divorce and Appeal Cases, before the House of Lords. But no case better illustrates the true idea of cohabitation than it. Mrs. Ludlow, a young and comely woman, eloped with Captain Campbell. Ludlow, the husband, died within two or three years afterwards. Captain Campbell and his reputed wife went to America, and thereafter constantly lived together as man and wife, were so accepted and known in his regiment and on his return to England were so received and recognised among all his relatives and acquaintances, including his relative, the Earl of Breadalbane, whose estate became the subject of controversy. They had children, who were baptized as theirs, and were accepted and received as legitimate offspring. Among other facts, Captain Campbell gave to her a general power of attorney in which he named her as “his wife, Eliza M. Campbell, residing at Maple-burgh (his residence), near the city of Edinburgh.” Thus they lived constantly together, moving from place to place together, always known and recognised as husband and wife, until his death, and after his death his son was recognised as heir in legal proceedings of tailzie. The evidence of cohabitation and general repute of marriage was most complete, said Lord Chancellor Chelmsford. The proof was so strong and overwhelming, it overcame the original meretricious relation, and afforded convincing evidence of a subsequent marriage by contract, all that is required by the Scottish law of marriage. In the case before us there is no such evidence, the case being left to rest upon a broken and irregular cohabitation, and a reputation whose weight lay on the side of single life. From the whole evidence we can draw no other conclusion, than that Elizabeth Sithens' was a kept mistress, and not a wife.

Decree affirmed, with costs to be paid by the appellant, and appeal dismissed.