Turpin v. Public Administrator , 2 Bradf. 424 ( 1853 )

The Surrogate.

There are in this case, two applications for administration; one by the Public Administrator, and the other by a party claiming to be the widow of the deceased. There is no proof of a formal or ceremonial marriage, nor a pretence of any. Hor did the parties cohabit with each other. The decedent resided at his boarding-house; and the claimant lived separately, keeping a small store from which she generally derived means of support. Turpin passed among his friends as an unmarried man. The claimant ordinarily went by the name of a deceased husband, Morrison. Turpin generally spent his evenings at her room, had connection with her for several years, and was the father of one, if not of two, of her children. She washed for him; he gave her money and clothes occasionally; he took her ont several times, but brought no friends to the house, and did not publicly recognise helas his wife. The connection was in fact clandestine. It is proved that after his decease, she explicitly declared she had not been married to him.

On the other hand, it appears that the youngest child was baptized in his name, and the same evening he sat down with the family to a supper on the occasion, in the course of which, as testified to by one witness, he once addressed her as Mrs. Turpin.

This is about the substance of all the important facts in the case, and the question is whether they afford sufficient ground for presuming or inferring a marriage in fact.

After Mi*. Turpin’s death, the claimant stated to his landlady, that she was not married to him, but said, he had stated that “ He had a little trouble on his mind, and when that was settled he would marry me, and no woman should stand before me.” The counsel for the claimant insists that this statement brings the c.ase within the rule adopted by the canonists, that “ a promise far verb A da futw'o, which was an agreement to become husband and wife at some future time, if the promise was followed by consummation constituted marriage, without the intervention of a priest.” (Poynter on Marriage and Divorce, p. 13.)

It is somewhat curious in this connection to observe that our statute declares that, “ any man who shall, under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor,” &c. (laws of 1848, Ch. 111.) This language is sufficiently general to cover the case of a promise to marry m futuro, followed by consummation, which, as seen, according to the canon law constitutes a perfect marriage; so that under such a construction of the act, a man would be punished for marrying. It is true, there maybe connection not in performance of the promise, the promise being still treated as executory. (Queen vs. Millis, 10 Cl. & F. 782, 905); and if the act of the Legislature is to be considered as referring only to that class of cases, it may not be in derogation of the rule of the canon law. Without examining that question more minutely, and treating this case on the hypothesis that a promise to marry per verM de futuro, cum copulá, constitutes a perfect marriage, I do not find sufficient in the evidence to sanction the conclusion that there was between the decedent and the claimant, a marriage of that character. Ho promise of any kind is proved, except that the claimant declared after the decedent’s death, that she was not married to him, but that he said, “ he had a little trouble on his mind, and when that was settled, he would marry her.” It does not appear when this statement was made, whether before or after the commencement of their connection; and when parties are living in a meretricious state, a promise to marry on some future condition, does not effect a marriage by a mere continuation of that connection. Besides, all that is known on this point is from the declaration of the claimant made after the decedent’s death, and in conjunction with a denial of marriage. There was no cohabitation or consortium vitce— no public living together—no general and open acknowledgement, or common reputation. The connection was as clandestine as under the circumstances it could be. Both parties denied that there was a marriage; and even on the supposition that the claimant in making this denial referred to a ceremonial marriage, there is not enough in the circumstances proved before me, to infer that there was such an agreement as in law constituted the parties man and wife. I must therefore pronounce against the claimant.