Commonwealth v. Stump ( 1866 )

The opinion of the court was delivered, by

Woodward, C. J.

In 1865 the register of Franklin county caused an appraisement to be made of the real and personal estate which the above defendants held under a devise from their father, and assessed it with a tax of $1262.50 under the Collateral Inheritance Tax Law, on the ground that the devisees were illegitimate sons of their father when the devise took effect. On appeal to the Register’s Court an issue was framed to try the legitimacy of the devisees, or, in other words, to try the question of fact, whether the parents were married before the boys were born. This was a question for the jury, but it is complained of that the court instructed the jury, on the authority of Thorndell v. Morrison, 1 Casey 326, that cohabitation of the parents was, alone, sufficient to establish their marriage. It appears from the charge that the learned judge did very distinctly negative the plaintiff’s point, that proof of cohabitation and reputation was necessary to ground a presumption of marriage, and did lay down the law, on the authority of the above case, that continued cohabitation for twenty years, without proof of reputation, was sufficient evi dence of the marriage.

Herein we think there was manifest error. The doctrine of Thorndell v. Morrison, interpreted, as all reported judgments ought to be, by the facts of the case, is that reputation and cohabitation are sufficient evidence of marriage for civil purposes, and this doctrine is consistent with our antecedent cases. This was the proposition which the court decided in that case, and if incautious language fell from the judge appointed to express the opinion of the court, it should be received with the limitation imposed by the facts. Unless this rule be observed in interpreting and applying our decisions, injustice will be done to us, and the lav/ will rapidly fall into confusion. Reading that decision in the light of this rule, it does not sustain the instructions given to the jury in this case, but it should have led the learned judge to an affirmance of the plaintiff’s points. Nor was the error harmless. Had there been evidence of reputation as well as of cohabitation, it might have been presumed that the jury based their verdict upon it notwithstanding the mistake of the judge, but there was no such evidence except by the mother, and she was successfully contradicted on this point. Whether there was a marriage or not would be a fact peculiarly within her knowledge, but whether there was a reputation of marriage was a fact to be proved by neighbors and acquaintances rather than by her. A reputation that was known only to her would be no reputation at all. Reputation consists of the speech of the people who have an opportunity to know the parties, and when the people all deny knowledge of such reputation, and allege, as several witnesses did, that the reputation was that the parties were not married, it signifies nothing that the woman permitted herself to swear that she and Stump were “ known and reputed to be husband and wife in the community in which they resided.” Reputation and cohabitation at best are only presumptive proofs, and where either of these grounds fails, the court should not allow the presumption of marriage to be built upon the other.

But che court put the case to the jury, not only on the presumptive evidence of cohabitation, but on the direct proof by the mother, Jane Stump, herself.

If she and Abraham Stump were ever married, I do not mean in form by a minister or magistrate, but in fact, by a mutual contract which the law would account sufficient for civil purposes, she could have told the jury when, in what place, and in what words the contract was made, for her deposition was taken, and all objections to her competency were waived. Yet all she swore on this head was that “ about thirty-one years since she went to the house of said Abraham Stump, to live with and keep house for him, under a mutual promise and agreement that they would sustain towards each other the relation of husband and wife, and that they did thus live and cohabit together.”

In our opinion, this was not proof of a marriage in fact. Marriage is in law a civil contract, and docs not require any particular form of solemnization before officers of church or state, hut it must be evidenced by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife, and, like all other civil contracts, should be proved either by the signature of the parties or by witnesses who were present when it was made.

Eor the sake of public manners and morals and to avoid scandal, it is better that such contracts should be attested by some officers of religion or by a civil magistrate, but if parties will not respect the wholesome usages of society in this regard, they should at least save their issue from the reproach of bastardy by making a contract of marriage that shall be susceptible of proof.

If the contract proved be a mere hiring of a housekeeper, the adding of concubinage does not make it a marriage. And what more is the proof in this case ? The woman says she went to Stump’s house to live with and keep house for him. That was a contract for housekeeping such as women often make with widowers. But she adds that it was under a mutual promise and agreement that they would sustain towards each tho relation of husband and wife. When was this promise and agreement made ? Not when she went there, for the witnesses say she did not sleep in the same room with Stump until after the birth of her first child. If they were to sustain the relation of husband and wife from the first they should have slept together — if that relation were subsequently established, in what words was the contract formed— when was it made, and who witnessed it? On these points there was an utter failure of proof. The evidence in Hantz v. Sealy, 6 Binn. 405, went much further than in this case, and yet it was adjudged insufficient.

Not only did the direct proof fail to establish a marriage, but it tended strongly to disprove it. After the death of Abraham Stump, his reputed wife, by the advice of counsel, obtained an Act of Assembly, dated 28th April 1854, for legitimating these two defendants, who are described therein as “ illegitimate sons and only children of Abraham Stump and Jane, his wife, who were born before the marriage of their said named parents.”

Now this declaration of the illegitimacy of the defendants would not conclude them unless it could be shown, which was not shown, that the legislature made it at their instance ; but it tends strongly to contradict the testimony of Mrs. Jane Stump. She says that after the birth of the sons the marriage ceremony between her and their father was performed, and that afterward, by advice of counsel, they had the Act of Assembly passed, legitimating the children.

“ They,” that is, she and Abraham Stump, had the act passed. Then it was an admission by each of them that they were not married when the boys were born. And the marriage ceremony, openly performed after the birth of the sons, was a further admission to the same effect. And both facts were direct and conclusive contradictions of her pretence that the marriage relation had been established when she went to keep house for Stump or at any time prior to the birth of the sons. Though she was mistaken in attributing the act to her husband, as it did not pass till near a year after his death, yet that it was passed at her instance is no doubt true, which makes the admission more personal.

Thus the direct, no less than the presumptive evidence, failed to establish the marriage of the parents before the birth of the sons, and if not born in lawful wedlock they were illegitimate.

The Act of Assembly removed the taint from their blood for all ordinary purposes, but not so as to exempt their estate from the Collateral Inheritance Law, which in terms includes lineal descendants not born in lawful wedlock, as well as collateral heirs or devisees. Had the legitimating act been passed before the devise took effect, the devisees would, I take it, have held the estate exempt from the. Collateral Inheritance Law, for they would have been as capable in law of taking as if they had been born in lawful wedlock, but their estate vested at the death of the testator, which was in May 1853, and if illegitimate then, the Commonwealth’s right to the tax vested then also. The legitimating act passed the next year contains no word to release the Commonwealth’s vested right, and that it can have no such retroactive effect, proprio vigore, is shown by the case of Galbraith v. The Commonwealth, 2 Harris 258, where a similar act, passed the next day after the death of the decedent, was held insufficient to take the estate out of the Collateral Inheritance Law.

The other assignments of error have not been sustained.

I have discussed the case more fully than the precise questions upon the record would have required, but not more fully than was necessary to present it in all its aspects.

The judgment is reversed, and a venire facias de novo is awarded.