In re Hinman

[2] The presumption of marriage does not assume that it took place at any particular place, manner, or time. It means that a legal marriage existed. The husband is dead. The wife is an incompetent witness to prove the time, place, or manner of marriage. If he were living, and she were a competent witness, they might be able to prove that the marriage took place in all respects according to the laws of this state; but they are necessarily silent. The marriage does not fail for that reason.

[3] The provisions of the domestic relations law relating to marriage are not a rule of evidence, and do not annul the ordinary presumption of law applicable thereto. Section 19 of that law did not attempt to visit the ban of invalidity on any contract of marriage, except upon one claimed to have been contracted otherwise than as mentioned in the statute.

[4] That statute is a restraint upon the natural common-law right of parties to make a contract of marriage, and must have a reasonable construction, but is not to be extended beyond its fair terms. It has no reference to and does not destroy the ordinary presumption of marriage. While that law was in force in all its terms, it was still permissible, when the facts required, to presume a legal marriage, although none was actually proved, which conformed to the statutory requirements. Several considerations invite the application of the presumption to this case.

It is uncontradicted that in the fall of 1901 the parties visited the appellant’s mother, father, and sister at Equinunk, Pa. He was introduced as her husband, and occupied a room with her. Other evidence shows their acts and their claim to be married prior to January, 1902. They were in fact living in the house with his mother. The introduction of evidence tending to throw a doubt on their relations at that time does not meet the case,'in view of their lives and conduct and the practical concession that a common-law marriage took place at some time. The relation of the parties from that time down to the death of the husband, aided by the presumption, is alone sufficient to determine this case in her favor. There are other facts upon which the presumption comfortably rests and which assure her position.

[5] They were out of the state at different times in Pennsylvania

[8] It is provided by section 5 of chapter 742 of the Laws of 1907, which chapter is alleged to make common-law ljnarriages invalid, that that chapter shall not affect marriages among the people called Friends or Quakers, nor marriages among people of any other denomination having as such any particular way of solemnizing marriages; but such marriages must be solemnized in the manner theretofore practiced in their respective societies or denominjitions, and that marriages so solemnized shall be as valid as if this article had not been passed. If the marriage took place in this state after January 1, 1902, we cannot assume that it did not take place in the manner provided for in* this section.

[7] Irrespective of the question whether from January 1, 1902, to the death of the husband on September 17, 1908, common-law- marriage might take place in this state, the evidence shows that the parties were right in believing that they were married, and the finding that there was no marriage is in conflict with thp law and the evidence in the case.

[8] Counsel have ably argued the question y^hether a common-law marriage since the statute of 1907 is permissible in this state. The surrogate evidently believed it was not. The ¿ratter is of public interest, and, although not necessary to a decision of the case, it may not be unwise to give it consideration. Sections 10 to 18 of article 2 of the former domestic relations law (chapteij 272, Laws of 1896), recognized marriage as a civil contract depending for its validity upon the consent of parties capable in law of making [it, and permitted such consent to be shown by common-law evidence. - It did, however, provide for a manner of solemnizing marriages in order to have them authenticated and recorded pursuant to that statute. Chapter 339 of the Laws of 1901 amended that article. From section 10 of the former law it omitted the words “for the purpose of being registered and authenticated as prescribed in this article,” leaving that section to read, that a marriage must be solemnized in one of the ways stated in its four subdivisions, and incorporated into section 10 of the law a provision that a lawful marriage, contracted in the manner and pursuant to the regulations of a religious society to which either party belongs, is as valid .as if the article had not been amended; and it added to the law section 19, which declared that no marriage claimed to have been, contracted after January 1, 1902, within this stjate, otherwise than as in that article provided, should be valid for any purpose whatever provided that no such marriage shall be deemed invalid by want of au-; thority of the person solemnizing the same under section 11, if con-' summated with the full belief on the part of either of the contracting parties that they were lawfully joined in marriage, or on account of any mistake in the date, place of marriage, or residence of either of" the contracting parties. It must be conceded that during the lifetime of section 19 a marriage claimed to have been solemnized in the state' in other than the statutory mode and not pursuaht to the regulations-of a religious, society to which the parties belonged was invalid. .The

Chapter 742 of the Laws of 1907 again amended the domestic relations law by striking from section 10 the provision excepting from the provisions of the article marriages according to the regulations of a religious society to which the parties belong, and incorporated into section 7 a similar and broader exception, and expressly repealed section 19, added by the Laws of 1901. Having thus stricken from the law every provision which declared other marriages invalid, the intention evidently was to recognize the validity of other marriages according to the well-known rule mentioned in Meister v. Moore, supra. Aside from that rule, the legislative intention is clear from the act itself. Section 19 had a saving clause, by which a marriage was recognized as legal if the parties were mistaken about the official character of the person solemnizing it, ignoring mistakes in names, dates, and places in the record. It cannot be that the Legislature meant to repeal this saving clause and make such excepted cases illegal. I think the repeal shows the changed public policy of the state, and that the Legislature became satisfied that the provision making marriages void unless performed in a particular manner was against the public good and public morals, and that the repeal was intended to and did make common-law marriages valid in this state.

We have not overlooked the fact that subdivision 4 of section 11 of the Laws of 1901, which related to a written contract of marriage and required it to be acknowledged in the same manner as is required of a conveyance of real estate to be recorded, was by the act of 1907 renumbered as section 6 and amended. The amendment added a proviso that the acknowledgment “must, in order to be valid,” be before a judge. It also required that the contract be recorded within six months with the county clerk, instead of being filed with the town or city clerk. If the Legislature intended by the general clause of section 11, as is claimed, to make all marriages void which were not solemnized in the manner mentioned in one of its four subdivisions, then it was^ clearly unnecessary to insert the words quoted in subdivision 4, which provision in that subdivision can have no effect upon the other subdivisions. If the amendment of subdivision 4 was deemed necessary in order to make a written contract not according to its terms void, then it clearly was the legislative understanding that the other subdivisions of the section did not carry invalidity with them. The words quoted only relate to the acknowledgment of the paper, and do not relate to a failure to have it recorded as required by the next sentence of the amendment. The section, as amended, until we get to the proviso, permits the acknowledgment to be taken before any officer qualified to take an acknowledgment of conveyances for record. Instead of rewriting that sentence, the Legislature added the proviso, which was undoubtedly intended to -mean that, notwith

The order should be reversed upon the law ajnd the facts, with costs, and the motion to remove the appellant as administratrix denied, with costs.

SEWELL and BETTS, JJ., .concur. J., concurs in result. SMITH, P. J., dissents.