Reynolds v. Adams

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

The assignments of error raise the questions which will be considered and passed upon in their order as stated below.

1. Does the preponderance of the evidence in the cause establish that there was a valid marriage of Arthur Reynolds and his reputed wife, the adult appellee, under the statute law of New Jersey?

As said by this court in Womack v. Tankersley, 78 Va. 242 :

[1, 2] “Marriage is a civil contract, and its existence; may be shown like that of any other fact. The production of the marriage registry, or certificate, or of a person present at its celebration, is not absolutely necessary. In a criminal prosecution, the acts and admissions of the prisoner, coupled with cohabitation and recognition, is sufficient evidence of marriage to procure his conviction. Warner's Case, 2 Va. Cas. (4 Va.) 95; Oneale’s Case, 17 Gratt (58 Va.) 582.

“* * * Such admissions of a prior marriage in another State are sufficient evidence of such marriage, without proving the marriage to have taken place agreeably to the laws of the State. Such admissions and acts are competent evidence not only of the fact of marriage, but also of its *306 validity under the lex loci contractus. Rex v. Inhabitants of Brampton, 10 East R. 282; Hemmings v. Smith, 4 Douglas R. 33; 3rd Waterman’s Archibold 613; and Bird’s Case, 21 Gratt. (62 Va.) 800.

[3] “And the same authorities establish that in all cases where the issue is the existence of the fact of the marriage, the rule of evidence is the same in civil as in criminal proceedings.”

The case quoted from was a civil case, being a suit for partition of real estate, and involved the question of the legitimacy of the plaintiff. The only evidence to prove the marriage of her father and mother was that the father asked for the mother in marriage, and, being refused, requested a sister to accompany them when they went away to be married, and the sister declining to go, they went away from home to be married; were gone ten days; on their return, they both said they had been married in the adjoining State of North Carolina; they cohabited as man and wife a few days until the return of the father to the Confederate army, and were recognized as such by the immediate family; the father being wounded in battle, died about a month thereafter, without ever returning home; the following February the mother gave birth to the plaintiff; the mother was thereafter recognized as the widow of the deceased soldier by her immediate family and by the Confederate military authorities, from whom, as such widow, she drew rations, and 'the plaintiff was from her birth recognized as the legitimate child of her father by such immediate family. "But á brother of her deceased mother appeared as a witness in the case, and, as said in the opinion of the court, testified “to facts, in the most positive manner, which, if true, fixed upon his aged mother the crime of perjury, and upon his dead sister the character of a public prostitute, and úpori his own niece * * * the stigma of illegitimacy. His testimony is not only positive that there was no such *307 marriage * * * as claimed, but lie states as facts things which, if true, would tend strongly to establish that it was a physical impossibility; facts directly in conflict with his mother and sister; * * It further appears in that case that the next year after the death of the father there was a qualification of a guardian of the plaintiff and of two children of her father by a prior marriage and in the guardianship bond the three children were styled “the orphans of C. H. Womack, deceased” — the father aforesaid. On this bond the brother, who was the adverse witness aforesaid, was surety. The mother of the plaintiff, that same year, namely, the year next following the birth of the plaintiff, executed, acknowledged and recorded a deed relinquishing in favor of said three children her dower interest in the lands of which the father died seized and possessed; and thereafter made a second marriage and subsequently died. There was other evidence for defendants which is not set out in the report of the case, but as to which the court says in its opinion, “* * * it is, in its character, pointedly in conflict with the evidence favoring the marriage, though circumstances were elicited which strongly tend to diminish its force in respect to credibility and viewed as a whole it is insufficient to satisfy us that the decree complained of is plainly wrong.”

This court, in such case, affirmed the decree of the court below, holding that the proof established that the marriage, which took place in another State, was a legal marriage.

[4] As said by this court in the case of Eldred v. Eldred, 97 Va. at p. 625, 34 S. E. at p. 484 (which was also a suit for partition of real estate): “The presumption of marriage from cohabitation apparently matrimonial is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, marriage not concubinage, legitimacy not bastardy, where there is enough to create a foundation for the *308 presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. Haynes v. McDermott, 91 N. Y. 451 [ 43 Am. Rep. 677 ].”

[5] It is also true, however, as said in the last-cited case (Harrison’s Adm’r v. Garnett, 97 Va. at p. 699, 34 S. E. at p. 478), that “* * * cohabitation and repute do not constitute marriage. They are only evidence tending to raise a presumption of marriage, and, like any other presumption of fact, may be overcome by countervailing evidence. White v. White, 82 Cal. 427 , 23 Pac. 276 , 7 L. R. A. 801; Cart-Wright v . McGowan, 121 Ill. 388 , 12 N. E. 737 [ 2 Am. St. Rep. 105 ] ; Waddingham v. Waddingham, 21 Mo. App. 609 ; Barnum v. Barnum, 42 Md. 296 ; and Com. v. Stump, 53 Pa. St. 132 [ 91 Am. Dec. 198 ].” See to the same effect, 26 Cyc. 882-3, 888. And in Eldred v. Eldred, this court held that the evidence therein was. insufficient to raise the presump tion of a legal marriage. But there the cohabitation as man and wife did not follow immediately upon the alleged marriage trip. The relation of the alleged wife to the alleged husband before such trip was that of housekeeper, and continued to be such for about a year after such trip and until it had come to the ears of the alleged husband that his neighbors were talking of their living improperly together; and it was not until it was evident that a child was about to be born that declarations were made by the alleged husband that they had been married. No excuse was given in evidence for the keeping of the alleged marriage a profound secret till the conduct of the parties had given rise to a scandal in the community. There was no general reputation of marriage accompanying the cohabitation, as soon after its inception as such reputation could be reasonably expected to arise; and the rule was applied that “cohabitation alone is not sufficient proof of marriage nor sufficient to raise the presumption of marriage.” Eldred v. Eldred, supra, 97 Va. at p. 626, 34 S. E. at p. 484. On the contrary, *309 in that case the general reputation of the parties was that they were not married, until after the alleged husband set about silencing the neighborhood gossip by the expedient of alleging the existence of a marriage, as aforesaid. Moreover, in that case it was clearly proved that the cohabitation in its beginning was illicit, and the presumption was applied that such a cohabitation is presumed to continue to be illicit “until that presumption is overcome by distinct proof of marriage,” citing authorities. And there were other facts in that case which not only seriously impeached the good faith of the declarations of the alleged husband and wife concerning the existence of a marriage, but also the .good faith and credibility of important witnesses who testified in support of the marriage. And the proof by the clerk of the court in Washington, having official charge of such matters, was unequivocal that no license was issued in Washington for the marriage of these parties.

{6,7] We come now to the application of the law to the facts of the case before us. Those facts, so far as deemed material, appear from the statement preceding this opinion. We are of opinion that in this case the declarations of the reputed husband and wife concerning the factum of the marriage were made in good faith and not to serve an ulterior purpose, as in Eldred v. Eldred, supra, 97 Va. 606 , 34 S. E. 477 . And such declarations accompanied the cohabitation from the return of the parties home from their marriage trip, and, unlike the Eldred v. Eldred case, the cohabitation immediately following the alleged marriage was matrimonial, and such cohabitation was accompanied by the general repute of marriage as soon after the inception of the cohabitation as such repute could be reasonably expected to arise. And being made in good faith, such declarations furnish evidence of the’most'convincing character of the existence of a legal marriage, and having been made as a’ part of the res gestae, they were admissible in *310 evidence for that purpose. Moreover, in the case before us, there was the admitted belief of the family, including members of it hostile to the marriage, that such marriage existed and their recognition of it until the death of the reputed husband, notwithstanding such hostility.

[8] The question under consideration is not free from difficulty. The case is one near the border line between validity and invalidity of marriage depending for proof upon the presumption arising from reputation and recognition of marriage. As appears from the authorities on the subject, among the prominent features which characterize proof which is sufficient to establish that such a valid marriage exists are the following, namely: that the declarations (which must of course have been deliberate and have been a part of the res gestae) were made in good faith; that the cohabitation must have been matrimonial, i. e., in the relationship' of husband and wife, and not of master and servant or in some other relationship; that the family recognition, where-that exists, must have been bona fide; and the general reputation in favor of the marriage must have existed along with the cohabitation as soon after the inception of the cohabitation as it could be reasonably expected to arise. As appears from the statement preceding this opinion, all of these features were present in the case under consideration. We cannot say, therefore, that the court below was wrong in its conclusion that the marriage in question was a legal and valid marriage.

[9] It is true that the testimony of the city clerk of Camden set forth in the statement above goes very far towards proving that no marriage license was obtained for or existed at the time of the alleged marriage. But the testimony of the clerk is not unequivocal. His testimony, when closely.examined, goes no farther than saying that his office was the only office in the city of Camden, N. J., from which license to marry could be obtained at the time he testified, *311 which was on April 2, 1917. He does not undertake to say that there was no office of registrar of vital statistics, in that city in 1911, when the marriage in question is said to have occurred. And, as noted in the above statement of facts, the statute of New Jersey on the subject designated the registrar of vital statistics of Camden as the proper officer to issue such a license as that in question, and only in event that no such officer existed was the clerk authorized to issue the license. Moreover, conclusions, such as that aforesaid embodied in the testimony of the clerk, to the effect that no one else had the authority to do a certain act, are so patently matters of opinion and of opinion so general in its nature that they do not furnish very satisfactory or convincing evidence, even when admitted in evidence without objection, especially when they are not explicit as to time. Hence we are of opinion that said testimony of the clerk does not furnish that “most cogent and satisfactory evidence” which is requisite, as aforesaid, to repel the presumption of marriage which arose in the case before us “from cohabitation apparently matrimonial.”

[10] It is further urged in behalf of appellants that there is no evidence in the cause that the alleged husband introduced the alleged wife into society as his wife. This is true, if by society is meant social life. And it is also true that there are authorities which hold that the fact that the man introduces the woman in society as his wife is a fact to be considered as evidence of marriage. 26 Cyc. 883; Robinson v. Robinson, 188 Ill. 371 , 58 N. E. 906 . But plainly this cannot be an essential element of proof of marriage in such cases as that which we are considering. Where there is the introduction of the woman into social life by the man, whether he introduced her as his wife or as occupying some other relationship to him, would, of course, be a very pertinent fact. But where neither the alleged husband nor wife moved at all in social life, as was true of such parties in *312 the cause before us, it is manifest that the absence of proof of introduction of the woman into such society by the man is immaterial.

[11] It is further urged in behalf of appellants that there is no evidence in the cause that the reputed wife assumed her reputed husband’s name. There is indeed no express proof of this. But it seems a necessary inference from the testimony in the cause. It is difficult to escape the inference from the proof in the record, which is that Arthur Reynolds introduced the adult appellee to two merchants “as his wife”; that her general reputation was that of being “his wife”; and especially from the testimony of one of such merchants to the effect that after the death of Arthur Reynolds a note was given in his favor for a debt the deceased owed him and for clothes for deceased to be buried in, which note w;as executed “by his wife” and another person. And no point seems to have been made anywhere in the pleadings or in the taking of depositions that the alleged wife did not bear the name of her alleged husband from the time of their alleged marriage, until she married the second time. And the consideration of the fatal effect upon the cause of the appellees of her bearing a different name during such time and of the ease with which such a fact could have been expressly shown by appellants, if it were a fact, is convincing to our minds that no such fact existed. The frequent reference in the record to the adult appellee as “Mrs. Adams” is explained, of course, by the fact that she had married a second time and was Mrs. Adams when the suit was instituted and when the depositions were taken.

On the whole, we are not satisfied that there is any error in the decree under review upon the question we have under consideration.

[12] As said by this court in the case of Womack v. Tankersley, supra ( 78 Va. 242 ) : “The judgment of a court of competent jurisdiction will always be presumed to be *313 right. And a party in an appellate court alleging error must show error, else the presumption in its favor will prevail.”

Again, in Shipman v. Fletcher, 91 Va. 487 , 22 S. E. 463 , this court said: “The judgment of a court of competent jurisdiction is entitled-to great weight. It is always presumed to be right until the contrary is shown.”

[13] And in the cause before us we have not only the decree of the court below, in appellee’s favor upon the question under consideration, but such a decree confirming a master commissioner’s, report so holding upon conflicting evidence of depositions of witnesses filed along with the record, as appears from the decree under review, from which .we infer that such evidence was taken before the commissioner in person, although there are no captions to the depositions or certificates of the taking of the depositions to disclose what is the fact as to this matter. If the latter be the fact, the rule is well settled that the report of the commissioner is entitled to great weight and should not be disturbed unless clearly at variance with the result of the evidence. Cottrell v. Mathews, 120 Va. 847 , 92 S. E. 808 .

The question under consideration must, therefore, be answered in the negative.

Having reached this conclusion, it becomes unnecessary for us to consider the question of whether there was a common law marriage in the case under review, or whether if there was it would be recognized under the laws of this State.

But two questions remain for our consideration.

[14] 2. Was it necessary that there should have been an account of debts against the personal estate of the testatrix under whose will the real estate was derived before there was a decree of sale thereof for partition?

This question must be answered in the negative.

The cases of Bowden v. Parish, 86 Va. 67, 70 , 9 S. E. *314 616 , 19 Am. St. Rep. 873 ; Hoge v. Junkin, 79 Va. 220, 230-1 , and Neathery v. Neathery, 114 Va. 650 , 77 S. E. 465 , are cited for appellants on this question. They are all cases for the sale of land to satisfy debts, and have no application to suits for partition of real estate.

[15] 3. Was it error in the decree under review to ignore the rights of the appellants; T. C. Beynolds and E. M. Beynolds, under the will aforesaid, which gave them a legacy of $200.00 each and made the provisions set forth in the statement preceding this opinion with respect to such legacies and as to a home for T. C. Beynolds in the contingencies named in the will?

We deem it sufficient to say with regard to these matters that, if there was any existing charge upon the real estate in the will mentioned or any lien thereon in favor of or belonging to these appellees, they have not as yet asserted any such claim in their pleadings in the cause..

Under section 2564 of the Code as amended (4 Pollard’s Code, p. 415), such appellees may yet assert any claim or lien upon the land they may have, if any, and if established, the proceeds of sale for partition may be applied thereto.

There was no error in the decree under review in that it did not go outside of the issues in the cause to protect rights of parties thereto asserted in argument, but not in the pleadings therein. The jurisdiction of the court below was limited to the issues made by the pleadings, and the same is true of our jurisdiction on appeal.

For the foregoing reasons, we are of opinion to affirm the decree complained of.

Affirmed.