Rhode Island Hospital Trust Co. v. Thorndike , 24 R.I. 105 ( 1902 )

I am unable to concur in the conclusion of my brethren.

My reasons are, first, that I am not satisfied of the fact of a ceremonial marriage between James Edward Thorndike and Elizabeth Gale. She says they were married by the Rev. Mansfield French, in New Jersey. Ordinarily, in marriages by clergymen, there is written evidence in three ways: by a certificate given by the clergyman to the parties: by a record in the parish register, and a return to the town or county records. At the time of this alleged marriage the statutes of New Jersey required a record to be kept and a return to be made to the clerk of the court of common pleas for the county, under a penalty of fifty dollars for omission so to do. Rev. Stat. N.J. pp. 461, § 6, and 462, § 9. In 1878, the return was changed to the town. N.J. Sup. Rev. Stat. p. 446, § 12. We can easily imagine that, through carelessness or neglect, one or more of these records might not be made, but to my mind it is a ground of distrust when all three are lacking, as in this case.

While the subsequent conduct of the parties has some points of corroboration, it has also some which add to my distrust. At first Thorndike did address his letters to his "wife," as from her "husband," but the later ones omitted all such references. They continued their relation for eight years, but they did not keep house, and were traveling most of the time with theatrical companies. During the latter part of the time he lived in New York and she in Massachusetts, and they corresponded. He went to London, and for sixteen years after that she gave no sign of claim or interest in him, even by inquiry of his family. Upon his subsequent marriage he went to live with the respondent Hannah Thorndike, in the same State where the former reputed wife was living and then removed to New Jersey, where the former marriage was said to have taken place. All this is possible, but bold and strange for a case of bigamy. The holding out of a relationship of marriage would be a natural statement while the parties were living together, but the circumstances of the marriage and life with Hannah indicate an assurance on his part that the former relation was one of misrepresentation and not of fact, and nothing appears, on the part of Elizabeth, during that time, to indicate the contrary.

Having reason to doubt that the alleged first marriage was an actual marriage, it can rest only on reputation and cohabitation; and in such cases, as stated in 1 Bishop on Mar. and Div. § 1031, on a question of legitimacy, an actual marriage of parents having been proved, a court will not let it be overthrown by showing, on the strength of cohabitation and reputation, a pre-existing marriage of one of the parties.

This statement is supported by Clayton v. Wardell, 4 Comst. (N.Y.) 230; Chamberlain v. Chamberlain, 71 N.Y. 423;Jones v. Jones, 45 Md. 144.

In Stevens v. Stevens, 56 N.J. Eq. 488, the court recognizes a tendency to favor the presumption that a subsequent marriage is valid where there is issue which may be bastardized by a contrary ruling. In this case there were children by Hannah and none by Elizabeth. The ceremonial marriage with Hannah is beyond question; and the alleged marriage with Elizabeth being, to my mind, doubtful, my opinion is, for the reasons stated, that the marriage with Hannah should be sustained.