Jackson, ex rel. Dies v. Winne , 7 Wend. 47 ( 1831 )

By the Court.

The maxim of the civil law, nuptias non concúbitos sed consensus facit, Dig. L. 50, tit. 17, § 30, or one of the same import, has ever been regarded in courts of common law as a good definition of marriage. There is an expression in Wood’s Institutes of the Laws of England, Inst. 57, which, if examined without its context, might seem to imply that cohabitation as well as consent was required to make a valid marriage. “ Marriage or matrimony,” he observes, “ is an espousal de prcesenti, and a conjunction of man and woman in a constant societybut the very next sentence is a translation of a latin maxim, similar to the one quoted from the civil law. “ Mutual consent,” he says, “ makes the marriage before consummation.” The language of Jacob, in his Dictionary, tit. Marriage, is less liable to misconstruction. He says: “ Nothing more is necessary to complete a marriage, by the laws of England, than a full, free and mutual consent between parties” not incapable of entering into such a state. Wood, in his Institute of the Civil Law, p. 120, says that “Espousals de prcesenti or marriage is contracted by consent only without carnal knowledge.” To ascertain whether a valid, marriage was actually solemnized between Copley and Joanna Desilva, we. are to look at their situation when before the justice, and what took place on that occasion. The evidence is very satisfactory that they went before him expressly for the purpose of solemnizing their matrimonial contract, and that Copley yielded his consent to it.

Was that consent the result of duress ? There is nothing to warrant such conclusion, besides the fact that Copley was in the custody of the constable on a proceeding instituted by the ' overseers of the poor. The necessary cónsequénce óf his mar-rage was a discharge from any liability to them. If a cohabitation had followed the alleged mariage, neither Copley himself, nor any other person, would have been listened to, if he had attempted to establish its nullity, upon the ground of his restraint. We will not say that we ought to disregard entirely the subsequent conduct of the parties in settling the question as to his free consent. The rule of law on this subject, as established in England, it appears to us, it would be safe and judicious to follow, although it be the rule of an ecclesiastical court. It is long since the jurisdiction in most matters relating to marriage passed from the courts of law in that country to the ecclesiastical courts. If the parties to an alleged matrimonial contract are infra annos nubiles, the ecclesiastical judge passes upon the assent, and determines what is a sufficient assent, and what not. His certificate is the proof required, and where he has cognizance, courts of law give, and it is necessary to the administration of justice that they should give, the same credit to the sentence of an ecclesiastical tribunal, as such a tribunal is bound to yield to the judgments of the common law courts on matters within their jurisdiction. 2 Lilly’s Abr. 244. c. It is very evident that the ecclesiastical court in deciding upon the sufficiency of the assent of the parties, can regard only what takes place at the ceremony. We ought therefore to confine our intention almost exclusively to the facts attending the espousals before the justice ; and, doing so, we cannot say that the mere circumstance that Copley had involved himself in difficulty with the overseers of the poor by his previous connection with Joanna, and that he took" the step he did with some reluctance, is enough to show that he did not yield his full and free assent to the marriage solemnized before the justice. To nullify on such slight grounds, so solemn a contract as that of marriage, would jeopardize, in too many instances, the blessings;which spring from the dearest civil and social relation. We are therefore bound to say that Copley’s marriage with Joanna was valid, and she being still alive, he consequently can have no legitimate issue by any other woman. Parthenia, one of the lessors of the plaintiff) is his only heir at law.

Whether Parthenia inherits any thing from him, depends Up0n the construction of his will. The devise in the will is as follows: “ I also give and devise unto my. three sons ■> George, William and Myron, the remainder of my property, both real and personal estate, if they should live to come of age, and their mother’s thirds, after her decease, if she remains my widow.” One third part of his real and personal estate, by a previous clause in the will, had been given to the defendant, during her natural life,, if she should remain his widow. It seems noFto be necesary to the decision of the question now before us, to determine whether the estate given to Copley’s three sons commenced in prcesenti, to be enjoyed in futuro, or whether it will vest when they arrive at the age of twenty-one years. We would depart wholly from the language of the devise, should we decide that the sons were entitled to the immediate possession of the property. They cannot have it during their minority. Who has it until they are of age ? The heir at law undoubtedly. It is not necessary that we should enter at large into the consideration of the nature of the estate which the heir takes ; it may not, however, be improper to say that the case of Rogers v. Ross, 4 Johns. Ch. R. 388, is a strong authority to show that she takes as a trustee, and not in her own right. It is not reasonable to conclude that the testator intended to produce such a result; but we cannot avoid coming to it, if we look to the language he has employed, and apply to it the established rules of law.

From the examination of the plaintiff’s points, it appears that he does not press his claim to more than two third parts of the premises. To this extent he is entitled to recover. We do not mean to intimate an opinion, that had he insisted on more, judgment for more would have been given. Our impressions, are strongly to the contrary.

Judgment for plaintiff, for two thirds of the premises.