Jackson v. Jackson , 80 Md. 176 ( 1894 )

Bryan, J.,

delivered the opinion of the Court.

An issue was sent from the Orphans’ Court of Dorchester County, to the Circuit Court, in these words : “ Is Sallie Jackson, the petitioner in this cause, the only lawful child of Richard Watson Jackson, intestate, deceased, whose estate is sought to be administered upon.” And it was ordered by the Orphans’ Court, that upon the trial of the issue, Sallie Jackson should be plaintiff, and the decedent’s brothers and his sisters and their husbands should be defendants. At the trial before the jury the plaintiff introduced a good deal of testimony tending to prove the marriage of her parents and her legitimacy. It was in evidence that Richard Watson Jackson was residing in Philadelphia, and that he and Mary Morris, who was residing there in February or Márch, eighteen hundred and seventy-two, went to Chester to be married, and after they returned, both of them stated that they were married. It was also testified that they acknowledged each other as husband and wife; that they cohabited together and were generally reputed to be married. It is not-certain, from the testimony, at what time their cohabitation conmenced or when the child was born.

Evidence was also given of the declarations of Jackson and the reputed wife, who are both dead, that Sallie Jackson was their legitimate daughter; also of declarations to the same purport made by the mother of the reputed wife. On the other hand, the evidence in behalf of the defendants tended to prove declarations by Watson Jackson that he was not the father of Sallie Jackson, and declarations, both by him and the mother, that they were never married; that the reputation of the mother for chastity was bad, both- before and during her cohabitation with Watson Jackson; that they were not generally reputed to be married, and that they separated sometime in eighteen hundred and seventy-four, and never lived together afterwards. It appears from the proceedings in the Orphans’ Court, that Watson Jackson died in October, eighteen hundred and ninety-three. It does not devolve upon us to settle the disputed questions of fact arising on the evidence; it was for the jury to determine the credibility of the testimony, and to draw all legitimate inferences from it. We are limited to a review of the questions of law decided by the Circuit Court as they are presented in the bills of exception. These are ten in number, and were all taken by the defendants. They have appealed, as the verdict was in favor of the plaintiff.

By the law of Maryland a valid marriage cannot exist unless it is celebrated by a religious ceremony. It is not required that the marriage should be proved by witnesses who were present at the time ; but such facts must be proved, as in the contemplation of the law will justifiy the inference that a religious ceremony has been performed. The declarations of deceased parents are admitted as evidence to prove the legitimacy of their children. Craufurd v. Blackburn, 17 Md. 49. It was said in the Berkley Peerage case: “ If the father is proved to have brought up the party as his legitimate son, this is sufficient evidence of legitimacy until impeached, and indeed it amounts to a daily assertion that the son is legitimate.” This assertion of the legitimacy of the son involves and implies the precedent condition that the parents were lawfully married. In Copes v. Pearce, 7 Gill, 247, the evidence of the legitimacy of the female petitioner (Mrs. Pearce) consisted of the declarations of her reputed father, Giles Copes, deceased, that he had been married to her mother, and that she was his daughter; together with the fact that she lived with him as his daughter before her marriage, and proof that she was called “ Sister Betsy,” and treated and recognized as a sister by the sons of a woman whom he married after the death of her mother. The Court said: “ The declarations of Giles Copes are full and explicit with regard to his marriage and the birth of Elizabeth, the appellee; and his whole subsequent conduct, and the course and bearing of the brothers, is an entire corroboration of them. Nothing short of actual proof of marriage and birth, by witnesses actually present, could be more convincing and conclusive.” Marriage may also be proved by general reputation. Boone v. Purnell, 28 Md. 607. In most cases it is proved by general reputation, cohabitation and acknowledgment. This species of evidence is admissible in all cases, except actions to recover damages for adultery and indictments for bigamy. Taylor on Evidence, sec. 517; Redgrave v. Redgrave, 38 Md. 97. The probative force of such evidence will vary according to the circumstances with which it is connected. For the sake of illustration let us state a case. Suppose it is shown that a man and a woman, lived together as husband and wife for many years, and continued this connection until it was dissolved by the death of one of them; that their deportment on all occasions was that of married people; that they acknowledged each other as husband and wife ; that they were received in society as such, and were generally so reputed and esteemed, and that to all external appearance their lives were upright, moral and irreproachable. This body of facts would lead any impartial mind irresistibly to the conclusion that they were married. The suggestion that they had been living in sin and dishonor would be justly rejected as irrational and scandalous. The necessary inference- then would be that their union originated under the circumstances which the law required to make it valid. In Vincent's appeal, 60 Pennsylvania State Reports, 240, there were unusual and irregular features attending the cohabitation between a man and a woman; but the facts of the case were of a peculiar character, and the Court thought that the pure fame and spotless reputation of the woman made it highly improbable that she would have consented to a lascivious connection, and they gave great weight to her exemplary conduct, in considering circumstances which otherwise would have been fatally suspicious. But men and women frequently live together in honorable matrimony who do not possess the virtues of the couple in the supposed case. Therefore, it cannot be held that all of the facts which we have enumerated are absolutely necessary to prove marriage. They would prove it in a very complete and satisfactory manner. Circumstances less favorable would also establish it, but not so conclusively. The lower the standard of rectitude of the parties, the less improbable would it be that they would lead a life of shame. And so we may say that the weaker the general reputation of marriage, the less would be its effect in producing the conviction that it really existed. And matters of suspicion, if not satisfactorily explained, would in proportion to their gravity weaken the proposed inference, or might defeat it altogether.

It is believed that the general principles governing this branch of the law are well settled by the authorities. But there is sometimes considerable difficulty in applying them to combinations of facts. The plaintiff’s first prayer accumulates a number of facts relating to the acknowledgment of marriage of the parties and to cohabitation and reputation ; with regard to reputation it required the jury to find that they “ were recognized in the community of Salisbury as man and wife, and held themselves out to the world as such, and that they or either of them stated to one or more citizens of Salisbury that they were married in Chester, Pa.” Upon the finding of these facts it asserts that “ the law presumes that they were lawfully married, and the burden of proof is upon the defendants to show by a preponderance of evidence, that the said Watson and Mary were never lawfully married.” It does not require the jury to find that there was a general reputation of their mai'riage. They were recognized in the community of Salisbury by some persons as husband and wife; there was also evidence that there was a general reputation in the community in favor of the marriage ; on the other hand, there was evidence that they had never been recognized as married by the family of the man, and a witness testified “ that there was a divided opinion as to their being married; that the general opinion of those with whom he talked was that they were not married.” General reputation is of great importance in determining the nature of the cohabitation, and the question ought to have been submitted to the jury. It would have been competent for the jury to find the general reputation according to the evidence in behalf of the plaintiff, or they might have found according to the evidence on the other side. But it is necessary that the reputation from which marriage is to be inferred should be general and not divided or singular. Barnum v. Barnum, 42 Md. 297Jones v. Jones, 48 Md. 391. The conclusion of the prayer is stated too strongly. The facts mentioned in the prayer, with the addition of general reputation, would have justified the jury in finding the marriage if they believed that it existed, but it was an error to say that these facts made the conclusion of law imperative in favor of a lawful marriage, and imposed on the defendants the burden of proving the negative. Every fact stated in the prayer might have been found to be true, and yet the jury might properly have refused to sustain the marriage, because there was evidence qualifying these facts, and tending to throw discredit and suspicion on the cohabitation between the parties. Mary Fuller testified that during the time of the cohabitation the plaintiff’s mother stated that she was not married; and there was also evidence that her reputation for chastity was bad, both before the cohabitation and during its continuance. There was also evidence that Watson Jackson, during the time of the cohabitation, said that the child was not his. It was also testified that before they separated he stated in the woman’s presence “ that they were never married, and she knew it,” and that the woman made no reply. If the character of the woman for chastity was bad, one of the elements would be wanting which give weight to cohabitation as one of the proofs of marriage, because it would be evident that moral restraints would not prevent her from living in concubinage. And if both man and woman stated that they were not married, these declarations would be grave impeachments of the connection between them. If they stated the truth the inference of marriage would, of course, be impossible. The cohabitation important to be considered in cases of this kind, is that which in its character and circumstances is consistent with the matrimonial union. The jury must decide on the credibility of the testimony, and it was their province to decide the question of marriage according to the inferences, which, in their judgment, ought properly to be drawn from the evidence.

The plaintiff’s second prayer is in these words : “ If the jury find the facts set forth in plaintiff’s first prayer, then they are instructed that said marriage is legally presumed to have been duly and lawfully contracted according to the law of the place in which they may find that said marriage occurred; and if they find that such marriage occurred in the State of Pennsylvania, then the validity of such marriage is recognized in Maryland, even though the jury may not find that any religious ceremony was performed at such marriage, nor any license obtained therefor.”

This prayer is founded on the first, and must fall with it. A general principle is correctly stated in it. If the marriage is justly inferred from the facts, then the presumption is that it was lawfully contracted wherever it may have taken place, and it will make no difference, if it be shown that by the law of the State where it was contracted the same ceremony is not required which is prescribed in this State. Redgrave v. Redgrave, 38 Md. 97. We, however, cannot take judicial notice of the law of Pennsylvania; if it was desired that it shpuld have any influence in this case, it ought to have been proved in evidence. Gardner v. Lewis, 7 Gill, 378.

The first prayer on the part of the defendants, was as follows: “ The defendants pray the Court to instruct the jury that it is incumbent on the plaintiff to prove to the satisfaction of the jury a valid marriage between Richard Watson Jackson and the plaintiff’s mother, and unless they shall so believe, their verdict must be for the defendants.” The inquiry was whether there was a valid marriage, and this prayer presents the question fairly to the jury. It was correct as an abstract proposition. But as an instruction applicable to the case, it was defective, because it did not inform the jury what was necessary to constitute a valid marriage. It left them to their own conjectures to determine what circumstances were necessary to its validity. The Court made an amendment which left the jury to find “ facts from which a valid marriage may be presumed,” but did not inform them what facts were required for the purpose. In a case like the present, where it is sought to deduce a marriage from facts and circumstances, the instructions on one side ought to set clearly before the jury the facts in evidence, from which they would be justified in finding the marriage; and on the other side the facts and circumstances should be stated which would justify them in refusing so to find. The first prayer for the defendant in Boone v. Purnell, 28 Md. 618, is a good example of such an instruction.

The second prayer for the defendants and the Court’s amendment of it are liable to the same objections as the first. The defendants’ third prayer was correct as an abstract proposition. It asserted that under the circumstances stated in the prayer, the jury could not find a marriage from reputation. But there was a good deal of other evidence for the plaintiff besides that bearing on reputation. It would perplex and embarrass trials very much to permit such a mode of practice. It is not right to instruct a jury that they cannot find a verdict from a portion of the evidence, and leave them in the dark as to what they ought to find from other portions competent to sustain a verdict. It would be an easy matter in every contested case to select some portion of the testimony which, standing alone, would not authorize a verdict for the plaintiff; but it is his right that all of the competent evidence in his favor should be considered by the jury. We do not question the right of a party to segregate a portion of the evidence, and obtain by a prayer the opinion of the Court upon its effect, as sanctioned by Whiteford v. Buckmeyer, 1 Gill, 127, and many other cases. But this right must be exercised in harmony with the.other rules of practice, and is necessarily limited by their operation. The fourth and fifth prayers are liable to similar objections, and the amendments made by the Court do not materially change them. Upon the supposition that the connection between Watson Jackson and the plaintiff’s mother was illicit at its commencement, it was incumbent on the plaintiff to show a subsequent marriage between them. Barnum v. Barnum, 42 Md. 297; although this may be shown by indirect proof. Jones v. Jones, 45 Md. 156. But this is not the proposition of the fourth prayer. It asserts that under such circumstances, other evidence than cohabitation was necessary to establish their marriage, but does not specify what other evidence was required. In point of fact there was much more evidence; so the prayer gave no definite information to the jury. The sixth prayer is not in question! The seventh prayer seeks an instruction in respect to the law of Pennsylvania. There is no evidence in the record of the law of Pennsylvania, and we have already said that we cannot take judicial notice of it. The eighth prayer asserts that the jury should take into consideration “the reputation of the plaintiffs motherfor chastity, the length of time they so lived together and held themselves out as man and wife, the manner and circumstances of their coming together as husband and wife and so living, the length of time they lived apart, their conduct, habits and circumstances since their separation, the declarations of them or either of them during their separation, and the manner in which they were received and treated by their respective families, and the society of the community in which they lived during the time of their cohabitation and the years of their separation.” All these matters tended to show the nature of the connection between the parties, and were important in enabling the jury to determine whether the cohabitation was pure and innocent, according to the proprieties of married life, or whether it was. licentious. If the appearances and circumstances indicated virtue and respectability, they would be favorable to the inference of marriage ; but if they bore the marks of incontinence and depravity, the tendency-would be to the contrary. It rested with the jury to decide the question. The ninth prayer was properly rejected. The declarations of Jackson and the plaintiff’s mother, that they were married at Chester, were competent evidence to go to the jury to prove the marriage. For this reason the tenth prayer was also properly rejected. The Court granted the two prayers of the plaintiff, and rejected all of the defendant’s in the form in which they were offered, except the sixth ; but granted the first, second, fourth and fifth with amendments.

We will now consider the exceptions to the rulings on the evidence. The first exception is to the admission of depositions taken in Philadelphia in behalf of the plaintiff. They were- taken in accordance with the requirements of Article 35, section 16 of the Code, and after the notice therein prescribed had been given. The defendant’s counsel was present at the taking of the testimony and cross-examined the witnesses. We see no objection to the depositions. The second exception was to the testimony of Dr. Price, given in answer to the eleventh interrogatory. The matter of inquiry was a question of medical knowledge, and the witness, a physician, was competent to testify as an expert. The third exception was to the following testimony given by Lettie A. Morris : “ One thing I have thought of since I have been in this room. Why should he come forward and want this child ? He made the proposition to her grandmother to take her and educate her.” She was speaking of' a proposition which the mother of plaintiff’s mother (who died two years ago) said had been made by Jackson. It is urged that this declaration is admissible to prove family relationship It is maintained that Jackson’s offer to provide for the child was evidence of an acknowledgment of her on his part as his legitimate daughter, and that this declaration of the child’s grandmother tends to prove the repute in the family of her legitimacy. Waiving all question about the remoteness of this declaration from the point in issue, we may state that the effort is to establish a relationship to Jackson, and this cannot be done by the declarations of a person who is not shown by evidence aliunde to be related to him. This point was distinctly adjudged in Blackburn v. Crawford, 3 Wallace (S. C.) Reports, 188. The evidence ought to have been rejected. The question asked of the witness in the fourth exception seems to have been disallowed, because it was leading. In the fifth bill of exceptions the defendnts proposed to ask a witness his opinion whether the parties were married. This was clearly incompetent. In the sixth the witness was asked whether he and his wife had recognized Jackson and the plaintiff’s mother as husband and wife. Family repute and general reputation are evidence, but the individual opinions and recognition of two persons are hot admissible. They were not even connected with the family. In the seventh exception a witness for defendant testified that she lived in a house about three yards distant from the one occupied by Jackson and the plaintiff’s mother, and that “ she heard whistling at night about the house, and saw men in the yard about the house at night, and that she would meet them sometimes as she was going to the well for water; that the mother of the plaintiff had told her that she had a child in Philadelphia before she was married, and that she had disposed of it by putting it in the water pipes, and that it came- before its time; that she never saw a man go in the house; but that on one occasion at night she saw a man come to the door, and plaintiff’s mother met him at the door.” She was then asked this question by defendants’ counsel: “ State under what circumstances and conditions you saw the party whom you speak of go to the door, and state what you saw on that occasion?” The counsel for defendants stated, “ that they proposed to show the conduct of the plaintiff’s mother, and the suspicious character of the inmates of the house, and proposed to follow it up by frequent visits of men to the premises at night under suspicious circumstances.” But on objection by the plaintiff the Court overruled the question. If the defendants could prove that the house was kept in a disorderly and disreputable manner, it would have a tendency to show that the intercourse between these parties was not of a virtuous kind. Similar testimony was tendered in the eighth exception, and for the same reason it ought to have been admitted. In the ninth exception the defendants offered to prove by a witness that he had never heard Jackson say that he was married or that he had a child.

(Decided December 18th, 1894.)

This witness had already testified that he was very intimate with Jackson, and had talked with him on the subject of marriage. If Jackson had said that he had never been married, it would have been admissible in evidence, but we cannot see how his failure to make any statement on the subject can be evidence. The Court ruled against the de•fendants on all the questions of evidence which we have been considering. There was error in granting the plaintiff’s two prayers and in refusing the defendants' eighth prayer, and in the rulings in the third, seventh and eighth exceptions to evidence.

Rulings reversed and cause remanded for a new trial.