Richard v. Brehm ( 1873 )

The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

This was an action of ejectment in which the plaintiff brought suit to recover as the devisee of Mary E. Richard. Defence was made principally upon the ground that the defendant was the surviving husband of said Mary. That fact was denied and presented the controlling question in the case.

Marriage is a civil contract jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de prcesenti, though it is not consummated by cohabitation, or if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary: 2 Greenl. Evid., § 460. Marriage is a civil contract which may be completed by any words in the present time, without regard to form: Hantz v. Sealy, 6 Binn. 405. The fact of marriage tiren may be proved and established by competent and satisfactory evidence.

What kind of evidence is held to be satisfactory ? Marriage may be proved in civil cases, by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation: 2 Greenleaf’s Evid. § 462. Eor civil purposes reputation and cohabitation are sufficient evidence of marriage: Senser et al. v. Bower et ux., 1 Penna. Rep. 450. In all civil cases involving merely the right of property the. fact of marriage may be proved by long-continued cohabitation as man and wife: Thorndell v. Morrison, 1 Casey 326. Both cohabitation and reputation are necessary to establish a presumption of marriage, where there is no proof of actual marriage; Commonwealth v. Stump, 3 P. F. Smith 132. Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state: Idem. Unequivocal and frequent admissions of marriage, accompanied by long-continued cohabitation and reputation, are frequently most satisfactory evidence of marriage: Vincent’s Appeal, 10 P. F. Smith 228.

Ought the evidence in this case to have been submitted to the jury to find whether the marriage relation existed between John H. Richard and Mary E. Richard ? It shows that from about the year 1832 down to the time of her death in 1870, they lived and cohabited together as man and wife. They recognised and addressed each other as husband and as wife. She called him her husband, he called her his wife. During all that time she bore his name. The three several deeds given in evidence by the plaintiff below, bearing date in 1856 and 1857, show' that the land was conveyed to her as the wife of John H. Diehard. Upon the 27th of March 1858, she duly executed, in the presence of three witnesses, a last will and testament, in which she describes herself as “wife of John H. Diehard.” She therein gives all the residue and remainder of her estate “ unto my said husband, John H. Diehard, his heirs,” &c.

Again, in the very will, under which the plaintiff claims, of the 24th of May 1870, she describes herself as “wife of John H. Diehard.”

More than a dozen different witnesses who had been acquainted with them for a time varying from eight to eighteen years, concur in testifying that during all that time they lived together as man and wife, and were so reputed by all their acquaintances. Thus, for nearly forty years, all those evidences of reputation, declarations, and conduct, which usually accompany the marriage relation, are clearly shown to have existed. The evidence which the learned judge held sufficient to overcome this long-continued and consistent life of the parties, was their separate declarations upon one occasion not long prior to her death, and his testimony upon the trial, that they had never been married. The declarations are proven by a sister of Mrs. Diehard, w’ho testifies that was the first knowledge she had of it; and he testifies that the marriage ceremony was never performed. He swears, however, “ by mutual consent we lived as man and wife;” and again, “ I am no relation to her, only she was my wife.” Again he said, “I promised to marry her. Nobody knows that we were not married.” It seems to us that the whole testimony is reconcilable, by assuming him to mean that no formal marriage ceremony had been performed by any third person uniting them in marriage; but that they had agreed to a marriage. That they recognised it as a marriage contract, and had always recognised and fulfilled it as such. His declaration made upon one occasion, when angry at his wife, to her sister, that they were not married, after more than thirty-five years of apparent wedded life, was certainly very weak evidence to rebut the presumption of marriage. Nor did his testimony upon the trial, necessarily go any further than to negative the one form of entering into a marriage contract. It did not prechide the jury from finding that a valid marriage contract had otherwise been entered into between the parties. The evidence was amply sufficient to have submitted this as a question of fact to the jury. Whether the agreement of marriage preceded or followed the first sexual intercourse, whether it was five or ten y'ears thereafter, if clearly made and proved, it established a valid marriage. The learned judge therefore erred in virtually taking the case from the jury, and in saying this was not a marriage a.s to them. lie should have affirmed the first point submitted by the defendant below, and to the extent we have indicated qualified the first point submitted by the plaintiff.

We think the evidence referred to in the second and third assignments of error should have been received, so far as it tends to prove the acts and declarations of the parties indicating a subsisting marriage relation existing between them. The other assignments of error are not sustained.

Judgment reversed, and a venire facias de novo awarded.