Whitehurst v. Whitehurst , 156 Md. 610 ( 1929 )

It seems to me quite clear that another view can be taken of this case, and I think it is the correct view.

It is obviously true that no considerations of the policy of Maryland courts in respect to marriage without the statutory formalities of license and ceremony is to interfere if it is found that such a marriage as is contended for took place and is valid under the laws of the State of New York. There should be in this case not even an inclination against giving the New York law its full effect. At the same time there should, of course, be no inclination toward finding such a marriage by means of any presumption or preference, or by anything short of a preponderance of the proof and the probabilities. Well known facts would prevent it. For we know that such cohabiting as the complainant and the decedent did in New York in this instance is common without any intention of marriage, more common than before, probably, under conditions of life in very large cities. We know that illicit unions exist, and as has been remarked in many judicial decisions, those unions are almost always, if not always, surrounded and screened by some pretensions to marriage, some keeping up of appearances where it seems desirable. Cunningham v. Cunningham, 2 Dow, 482; Rose v.Clark, 8 Paige (N.Y.), 574, 582; Bicking's Appeal, 2 Brewst. (Pa.) 202, 232; Port v. Port, 70 Ill. 484, 487; Cross v.Cross, 55 Mich. 280, 287; In re Terry's Estate, 58 Minn. 268, 274; Redgrave v. Redgrave, 38 Md. 93, 102. And, further, it now appears to be demonstrated to us by the experience of the United States Bureau of War Risk Insurance, that in this day of easy, habitual formal procedure for complete marriage, the parties who, in states where there can be a legal common law marriage, are satisfied to consider themselves married by a common law method, rarely if ever consider themselves legally married, so that, for instance, a divorce would be necessary to dissolve their relation. Koegel, the author of the latest study of common law marriage, who had charge of investigations of thousands of claims by common law wives filed in that bureau during or after the late war, says, "Moreover, very few, if any, of these persons really believe that they are married. Scarcely any of these persons believe that a divorce is necessary to dissolve the marriage, in fact, nearly all believe that common law marriage and living in adultery are synonymous terms. If it were a sine qua non to the validity of such a union that the parties believe that a divorce is necessary to dissolve such a marriage (and a divorce is necessary as in any other marriage), then there are few if any common law marriages." Koegel, Common Law Marriage, 102. It was to some extent, indeed, upon the fact that "these loose and irregular contracts, as a general rule * * * are most generally founded in a wanton and licentious cohabitation," that marriages by agreement have been denied recognition as lawful by this court. Denison v. Denison, 35 Md. 361, 381. The ordinary practice and preference, of women especially, that real union as man and wife shall be solemnized and certified beyond risk of question or suspicion, inevitably raises an expectation that, where there has been no such solemnization, and no effort to secure certification, it will be found that the full married relation has not been undertaken. And, lastly, the fact that contentions for legal common law marriages are scarcely ever heard of except in dubious demands for money from wealthy men or their estates — apart from the exceptional claims before the Bureau of War Risk Insurance — must cause hesitation in reviewing the evidence in another demand. In the light of knowledge of these practical conditions the burden of proof in this case seems to be a heavy one.

The case is that, during the settling up of the estate of a comparatively wealthy man, fifty-five years of age, who to all his relatives, friends and business associates, so far as appears, was known as an unmarried man, and had made his home with his mother, brothers and sisters in Baltimore, with no record anywhere of a marriage, a young woman of twenty-two comes forward with a claim that she had been married to him in New York, where he went once a week on business. Yet neither was she known to her relatives or familiars as married, except, perhaps, to a few in New York who were aware that she had been living to some extent with the decedent in a small apartment he had kept there. Of course, there is no certificate to be produced.

The complainant appears to have been since 1922 a member of various theatrical or musical organizations performing outside of New York, and she had spent two weeks in Baltimore in that year in a cabaret organization at the Century Theatre, in which the decedent was largely interested. After her last performance in Baltimore, at half past two in the morning, she, according to her own somewhat hesitant admission, went to a "shore" on Middle River near Baltimore, in a party of five or six, men and girls, and stayed there until the late afternoon the following day. She says she thought the party was going to a country club. The party did not include the decedent. In March of 1923, the complainant's theatrical employment having come to a stop, she became employed in a dressmaking establishment of a Mrs. Gensburg in New York City. She stayed at a hotel at times and at other times stayed at the house of a friend in New Jersey.

The decedent was then a man fifty-four years old, living in Baltimore, as has been said, and engaged there in the management of moving picture and vaudeville theatres in which he was a large owner. It was his custom to go to New York on business every Monday afternoon, and to return to Baltimore on Wednesdays. He had procured himself a small apartment in New York, in an unpretentious building, and two of his business friends for a time had keys to it. And there was testimony of entertainments there, and testimony that young women lived there previously, two of them for periods of six months each. Complainant heard of the previous residence of these other young women there, but, contradicting another witness, says she heard of it only after the death of the decedent. To a considerable extent the complainant lived there during the last nine months before January, 1924, when decedent died. It seems impossible to say she lived there all the time, because of her putting up at a New York hotel frequently during that period, and because, in one of the decedent's letters which she preserved, he merely notified her that his brother would be using the apartment at a time mentioned, and directed her to introduce herself to the brother if she ran into him. The decedent regularly wrote her a short pencil note on Friday of each week during that period, each addressed to her at the apartment in the name of Claire J. Ulrich; and these notes the complainant preserved. They are abrupt, hurried, devoid of any indication of respect or marital attachment, sometimes lascivious, and worse. And when he went to New York on Mondays, as he regularly did, he gave her allowances of money.

On starting to prepare for substantiation of her claim, the complainant procured from a close friend, a Mrs. Stevenson, from complainant's home town in Pennsylvania, who had visited complainant in New York on the previous April 9th and 10th, 1923, a first statement, and then an ampler, second statement, to the effect that while Mrs. Stevenson was there the complainant announced to her that there would be an informal, private marriage between the complainant and the decedent on that night of April 9th, that the complainant was away from the hotel that night with the decedent, and that at lunch the next day the decedent said they had been married by a private ceremony and were going to live together as man and wife. A later third statement, adding that she had been with the pair at the apartment on the night in question, Mrs. Stevenson, advised by the men of her family, refused to give. As a witness Mrs. Stevenson was reluctant, or afraid to say anything, hesitating either to adhere to the statements she had given or to abandon them; but adhered to the statements finally, except that she testified that the decedent had said on April 10th only that the pair would be married in the future. Much of the decision of the case is rested on these statements of Mrs. Stevenson, and I am not able to see that they can be given that value. I do not see any reason for saying that Mrs. Stevenson tended more toward the truth in giving her statements than she did later in giving her testimony, or to accept any of her evidence as the stuff judicial decisions should be made of.

A statement procured from a Mrs. Wells, a New York friend of the complainant, declared that the decedent told her that the complainant was Mrs. Whitehurst now, and opened a credit for her in that name at Mrs. Wells' millinery establishment. But Mrs. Wells does not believe there had been any marriage, and the complainant admits that in response to Mrs. Wells' questions for confirmation she told her that she, the complainant, had a marriage certificate. The explanation given on behalf of the complainant is that she had in mind the prayer book produced later. A maid at the hotel, where complainant stayed, testified that, on leaving the hotel somewhere about April 9th, 1923, the complainant said she was going away to be married, and the maid helped pack a trunk. The hotel records show that the complainant left the hotel on April 12th. A grocer near the apartment and his daughter testified to sales checks made out in the name of Whitehurst, and the daughter knew the complainant only as Mrs. Whitehurst, while her father knew her only as Miss Ulrich. And the keeper of a nearby cleaning shop testified that complainant gave the name of Whitehurst there, that gentlemen's garments had been left for cleaning, and that the witness thought a gentleman had come into the shop once with the complainant. A colored maid, who did work at the apartment, testified that the complainant was introduced to the maid by Mrs. Wells as Mrs. Whitehurst, and that the witness knew complainant only as Mrs. Whitehurst. And that evidence is attacked because the witness and the complainant were closeted together for three hours before the witness was examined. And finally there is the interpolated word "Wifey" in one of the decedent's letters. That word, the handwriting expert produced by the complainant was not able to attribute with entire confidence to the decedent. The expert testifying for the defendants attributed it to the complainant herself.

In the bill of complaint and earlier discussions of counsel, importance was attributed, on the complainant's behalf, to a letter of decedent's in which he referred to an approaching wedding. And in the bundle of letters preserved it is pinned to an envelope postmarked April 5th, 1923. But it also contains a reference to a meeting which the decedent was to attend in the west, and upon the taking of testimony it was shown beyond question that the meeting was held in May, and that the complainant's sister was married shortly after, in that month. The latter was then abandoned as evidence on the complainant's behalf, and there is no written word in any letters of an approaching marriage of the complainant.

There is much contradiction of the testimony just outlined, but, if it is all taken as true, I do not see on what ground it could be distinguished from such testimony to like effect as would naturally arise from an intentionally illicit cohabitation, by reason of misconception or cautionary pretensions of the parties. It seems to me that even more might be expected, and that the lack of more could be explained only by the fact that the complainant kept her dwelling in the apartment a secret, as far as she could, a fact which is admitted.

It is thought that the prayer book mentioned in the bill of complaint, and exhibited during the taking of testimony, may be regarded as containing on its face a written agreement of marriage, and that, in connection with the evidence of a handwriting expert on the authorship of names written on the pages especially involved, the evidence of Mrs. Stevenson and other witnesses of complainant's statements of intention to marry the decedent, and the evidence of the decedent's reported later statements to Mrs. Stevenson and Mrs. Wells, it may be accepted as establishing the agreement of marriage contended for. The book is a small Roman Catholic prayer book of thin paper, which contains among other things forms and directions for celebration of marriages by a priest, and two pages containing directions for mixed marriages have the names Claire and Charles written upon them in pencil, in close proximity to the answers directed to be given by contracting parties to the priest's questions. One name is written in the wrong place. The handwriting experts differ almost altogether on the identity of the writer or writers, one testifying for the complainant that she wrote two names and the decedent wrote a third, while he was unable to form an opinion as to the authorship of the fourth, which was a second "Claire." And an expert for the defendants is of opinion that she wrote all four.

The question is one of possibly imitated writing, and the trial court had the advantage of demonstrations upon magnified copies, pointing out such indications as differences in the angles of the pencils or pens, and in the evenness or unevenness of pressure; and without these ocular demonstrations it is difficult to follow the testimony. And the judges, so far as they can rely upon their own unaided eyes, differ in their impressions. The trial judge rejected the prayer book as unauthentic. It seems to me that a consideration of the circumstantial evidence should, however, solve all questions as to the value of the book.

It is somewhat difficult to say at the outset that a form for marriage ceremonies with only names written over it presents an agreement of marriage, or a declaration that the persons bearing those names had entered into an agreement of marriage, and intended to be legally married people. It seems to be reading into the book more than is actually there. But, however that doubt may be answered, it would seem strange that either party should have thought of such a method of becoming married if they really meant to be legally married. A common law wedding is not a familiar form of deliberate marriage. The woman in this case belonged to a church with well known requirements of marriage by a priest only. Its prayer book declares this, and the pages on which the names are written here are pages of directions for marriages by a priest. The decedent came from a state in which real marriages without religious ceremony are unknown, and so-called common law marriages are always illicit unions.Denison v. Denison, 35 Md. 361. And even for people who might be advised of the possibilities of common law marriages in New York, and might deliberately try to effectuate a really valid marriage by a common law method, this ceremony alleged would seem to be a strange one. People so intending would presumably seek to have such an important act witnessed or authenticated in some solemn way. It would seem unlikely that, if they thought well to make any record at all, they would adopt anything so ill-fitted as this as an expression of their solemn purpose and as the foundation of their future permanent status. At least a clear agreement, fully signed, would be expected, not first names only, written over cramped spaces and words on pages of a book not intended for any writing, and which will not even hold ink. And explain it as we may, the fact that this book, relied on as the record of a ceremony out of which the marriage arose, was not shown to the attorneys employed by the complainant to establish that marriage until a year after the death of the decedent, and did not figure much in their plans, should cause hesitation to accept it as authentic. Such oversight does not ordinarily happen to the foundations of a suit. Thus there seems to be inherent improbability in the contention that this book presents a contract of marriage, or declares the parties married. And there are still undisputed facts in the case which — putting aside all disputed testimony against the complainant's claim — are opposed to it.

Here relatives of the parties were not told of any engagement or marriage. There was no engagement ring, and, although it is averred that a marriage was effectuated at a specific time and place, April 9th, 1923, there was no such thing as a holiday together, or other action signalizing a marriage at that time. The decedent returned to Baltimore as usual after that date, and the complainant, after an absence during that week, returned to work at Genzburg's dressmaking establishment for another week. The decedent did not set up a home for himself and wife according to his way of living. On leaving her hotel on April 12th, the complainant left as her mailing address that of her friend in New Jersey, and on leaving after subsequent stays at the hotel she never gave the apartment as her address. All of Whitehurst's notes to her were, as stated, mailed to the apartment, addressed to Miss Claire J. Ulrich. On April 18th she opened a personal bank account in New York in the name of Claire J. Ulrich, with an address at the apartment, and on November 11th, 1923, opened another in the same name at a different bank. Seven times during the period between April 12th, 1923 and January 30th, 1924, she returned to the hotel, and registered under the name of Claire J. Ulrich, and that was the hotel where, on leaving in April, she had, according to evidence introduced by her, stated that she was leaving to be married, when she gave orders as to mail on leaving the hotel, she directed it to be held. At the wedding of her sister in May, 1923, she signed as a witness in the name of Claire J. Ulrich. On a trip to Bethlehem, Pennsylvania, in July, to secure an appointment as guardian of a young son of her godmother, she registered at a hotel as Claire J. Ulrich, and in that name signed and made affidavit to the papers. At Atlantic City, during the summer, she put up at one hotel under that name, while Whitehurst put up at another hotel. He was attending a convention. Coming to Baltimore during the last illness of the decedent, she registered at a hotel under the same name, and in calling up one of decedent's brothers announced herself as Miss Ulrich. And for a short period after the death of Whitehurst she received a weekly allowance from a New York attorney who was a friend of Whitehurst's always paid by check to Claire J. Ulrich.

It is argued for the complainant that much of this evidence, at least, may be explained by a desire of the parties to keep their marriage secret. Of course, a hidden fact and a fact which does not exist must leave much the same state of evidence. And it is conceivable that in states in which marriages might exist merely by agreement, without records or ceremonies, they might be kept secret and to the people surrounding the parties entirely unsuspected, or nearly so. But it would be unusual, and according to common experience unlikely. "There is," says 2 Schouler,Marriage, Divorce, Separation and Domestic Relations, sec. 1254, "a presumption against the validity of secret marriages."Sorensen v. Sorensen, 68 Neb. 483; Heminway v. Miller,87 Minn. 123; Bishop v. Brittian Inv. Co., 229 Mo. 699; Jacksonv. Jackson, 80 Md. 176; Koegel, Common Law Marriage, 108 to 115. And if this presumption and inference should in a particular case happen to be wrong, the party contending for a married relation, but who had dispensed with all record of it, and has avoided the evidence of the married state which would ordinarily surround the life of parties who considered themselves married, cannot complain if a court fails to find the necessary proof. While a supposed desire for secrecy might explain a lack of evidence, it could not enable the court to find the fact without evidence. In this case, I think, quite apart from the disputed testimony on behalf of the defendants, there is a lack of sufficient evidence to support a finding of the married relation, however that lack may be explained. It is, moreover, not clear that any plausible desire for secrecy could satisfactorily explain all the undisputed facts last recounted. There was no reason, for instance, for secrecy with the Genzburg family, who were intimate with the complainant, did not know the decedent or come in contact with any of his relatives or friends, and yet received no intimation of a marriage prior to the making of the present claim.

And there remains much testimony directly contradicting the facts which have been recited on the complainants behalf, which testimony, subject to attack as much of it may be on the ground of personal friendship for the decedent, or bias, cannot in my opinion be swept out altogether, without discrimination. That would be a simple solution of the difficulty, but not a judicial one, I think. There is testimony, for instance, of one business friend of the decedent that he happened to be in the apartment on the night of April 9th, 1923, which was on the day before his own wedding anniversary, and that no such ceremony or marriage arrangement as the complainant contends for actually occurred. If on the ground of probable bias we must disregard all such evidence as this, how can we consistently accept the statements which Mrs. Stevenson gave her friend, the complainant, in the preliminary preparations for supporting the claim, the statements now accepted as true. Then there is direct evidence of three witnesses of the complainant's tracing the word "Wifey" on the letter where it appears, from letters selected from the notes of the decedent; and testimony of the complainant's exhibiting her mother's old fashioned wedding ring as her own wedding ring. And there is much other evidence contradicting in details of greater or lesser importance the contentions urged for the complainant. It is useless to take it all up in detail here. I think there is far too much of it to permit acceptance of the contention that there was a common law marriage, a marriage intended by the parties to be a valid, legal union. And, finally, while the decedent cannot reply to the allegations of marriage now made, we have received in reliable form an indication of his understanding of the relation that he had with the claimant. An attorney in New York, Mr. Sulzberger, not concerned in this case now, was consulted by the decedent shortly before his death on some question concerning the claimant, and this same attorney befriended the claimant later by giving her money out of his own pocket, and when she made the claim of a common law marriage placed her in the hands of a Baltimore attorney, one of the earlier attorneys employed. Mr. Sulzberger is given full credence by both sides as a witness to the few facts to which he was willing to testify. And while declining to give the conversation with the decedent, he did say that nothing ever said by the decedent permitted him to say that the claimant was his wife. And it may be added that this witness, too, said that according to the best of his recollection no such word as "wifey" was used in the letters from the decedent placed in his hands by the claimant.

The trial judge was, in my opinion, right in his finding that there was no marriage.

But there is another, and in some respects more serious difficulty confronting the complainant. She deliberately settled her claim. And to recover on that claim now she must have the court rescind and cancel the settlement on some one of the grounds which move a court of equity to take that action.

To the contention that the complainant was deceived in the settlement by being persuaded by Mr. J. Lieper Winslow, attorney for the Whitehurst family, as well as by her own attorney, that the paper by which she released her claim contained an acknowledgment that she was the widow of the decedent, I cannot see that much importance can be attached. There had been previous discussion, during negotiations of counsel in Baltimore, of requiring such an acknowledgment, but the suggestion had been rejected by counsel for the Whitehurst family. The contention that the complainant had been so deceived in the transaction in New York rests entirely upon her own testimony, and that is contradicted by Mr. Winslow and her own attorney. A charge against an attorney that he knowingly misrepresented the contents of a paper which he presented for execution, for the purpose of procuring execution, when it would not otherwise have been obtainable, and did so in collusion with the signer's own attorney, is a serious one to make against an attorney, and one which could be judicially established as true only on clear, unmistakable proof. Mr. Winslow's evidence to the contrary is at least as clear and straightforward as the complainant's. Indeed, on this record it seems to me that it is impossible to avoid saying that the complainant's evidence appears altogether too untrustworthy to be accepted as the basis of any adjudication, for she exhibited herself as over-ready to supply evidence, and to shift her testimony, as occasion seemed to demand.

Avoiding illustrations of this from the excluded testimony on the marriage, these definite instances may be cited. In her bill of complaint, and to some lesser extent in the testimony, there was a contention that preparatory to the settlement she had been terrorized, by her counsel and an acquaintance of her own and of her counsel too, with tales of threatening danger from the Ku Klux Klan, and others antagonistic to her claim. When a Mr. Eisenberg, an attorney employed by her at an earlier stage of her case, was giving his deposition in New York as a witness to some facts on her behalf, he mentioned a trip to Baltimore with her to consult counsel retained there, and said he had a man, Harry Silverstein, who came into his office at times, go along. Explaining it, he testified: "I said, `Harry, I have got to make a trip to Baltimore, and there is a young lady on the train, and I don't feel like travelling alone with young ladies, even if they are clients. Come along.'" And to confirm his recollection on this he asked the complainant, who was present at the taking of the deposition, whether the man named was with them. She answered then, "I think he went on the case." Yet this incident became, in the complainant's testimony in the trial court: "I was so scared about it when I came down to Baltimore the first time, the lawyer had a policeman with him and two revolvers in his pocket and he sat up all night and watched us in the berth * * * a big, husky man that came down with us, and he watched us all night so nobody could get us in the train * * *. It was an armed guard we had. * * * Mr. Eisenberg was afraid to come from Brooklyn to Maryland without a revolver, and had two of them." And on a minor point, contradicting some other witnesses in New York, she persisted in saying that on the Saturday night before the death of decedent, upon receiving a telephone call from some one unknown, she came to Baltimore by the night train, registered at a hotel early Sunday morning, went to Sunday mass at the Cathedral, and spent the remaining days here up to the death on Wednesday. But the hotel register shows she arrived on Tuesday morning, the day after the decedent was expected in New York, but did not appear, and left Baltimore on the next day. And that was in accordance with the testimony of the New York witnesses. After acknowledging her signature on the register, her New York counsel asked if she had admitted it, and then she said she did not think it was her signature because she never signed her name that way. Yet she had signed many acknowledged signatures in the same form and letters, and, so far as appears to the naked eye, in exactly that particular hand. And if she did not sign that name, then she did not register at all at the hotel. There are other shifts and inconsistencies, on some of which the trial judge questioned her, and it is easy to understand, even without the advantage of seeing the witness while giving her testimony, that she would discourage any preference of it as a basis for a judicial finding, especially against straightforward evidence to the contrary.

But it seems to me, after all, to be unnecessary to dwell upon the unsafety of reliance upon her testimony that she was deceived by a representation by Mr. Winslow that the release acknowledged her to have been married to the decedent, because there are facts with which that testimony cannot be reconciled practically. The paper was brief, one page, of four short recitals and an agreement clause of twenty lines, all clearly typewritten, and it was in the complainant's hands for some time for signing, and reading as much as she wished. There is no obscurity about the wording. In four paragraphs she is conspicuously named as Claire J. Ulrich, and she was required to sign as Claire J. Ulrich. It is not only difficult to suppose that she did not see for herself what the purport and effect of the paper were, but difficult to suppose, too, that any attorney would, if he were unscrupulous enough to do it, misrepresent the contrary in the face of that paper. Moreover, she was paid the $11,000 by a check endorsed to her in the name of Claire J. Ulrich. A finding of such misrepresentations on the part of the attorney has, in my opinion, far from sufficient foundation in the case presented. For these reasons I think there is no substantial ground of attack on the release.