Williams v. Williams , 46 Wis. 464 ( 1879 )

Taylor, J.

The learned counsel for the plaintiff and respondent insists that she was entitled to recover upon either of two theories: First, that if she was the lawful wife of William Jones at the time she manned Lewis Williams, Sr., she was afterwards lawfully divorced from said Jones about two years and nine months before the death of Lewis Williams, Sr., and, as during all that time she and the said Williams lived and cohabited together as husband and wife, and she was all that time spoken of by the said Williams as his wife and treated by him as such, and during all that time she spoke of said Williams as her husband and treated him as such, from the evidence in the case upon that point, if necessary to sustain the plaintiff’s claim that she was the widow of said Williams, the jury would be justified in finding a marriage in fact between the said Lewis Williams, Sr., and the plaintiff, after her divorce from the said Jones. Second, that there was sufficient evidence in the case to justify the jury in finding that she never was the lawful wife of William Jones, for the reason that he had a wife living at the time she was married to him, and that such wife' is still living and not divorced, and that consequently her formal marriage with the deceased, Lewis Williams, Sr., on the 9th of May, 1870, was in every respect a lawful marriage.

The learned counsel for the appellant insists: First, that the judgment record in the divorce suit between Jones and Jones, given in evidence, and entered sometime in November, 1870, is conclusive evidence against the plaintiff that at the time of the entry of snob judgment, and from tbe date of her alleged marriage with the said Williams in 1870, to the time of the entry of such judgment, she was the lawful wife of said William Jones; and that, as a consequence, her marriage with •said Lewis Williams, Sr., on the 9th of May, 1870, was absolutely void. Second, that there was not sufficient evidence of an actual marriage between the plaintiff and the said Lewis Williams, Sr., deceased, subsequent to the date of the j udgment in said divorce suit, and consequently she had failed to prove that she was the widow of the said deceased. Third, that the court erred in refusing to give to the jury the following instructions asked by the defendant:

“Testimony has been admitted of acts and conversations of Lewis Williams, Sr., by which he recognized the plaintiff as his wife. This testimony was admitted as being competent, and as tending to show that the parties were married. If you find that such acts of Jane Williams and Lewis Williams, Sr., which have been given in evidence, arose from and were the result of a marriage ceremony which tools place between the plaintiff and Lewis Williams, Sr., in May, 1870, and that Jane Williams was then the wife of William Jones, and that no marriage was ever solemnized between the plaintiff and Lewis Williams, Sr., after the divorce was granted to the plaintiff in November, 1870, from said William Jones, then your verdict must be for the defendant.

“ If you find that Lewis Williams, Sr., spoke of the plaintiff and introduced her as his wife because of some pretended marriage between the plaintiff and himself at a time when the plaintiff was the wife of William Jones, and not because of any actual marriage solemnized or contracted after November, i8jo, then your verdict must be for the defendant.

“ If you find that no legal marriage was ever solemnized or contracted between Jane Williams, the plaintiff, and Lewis Williams, Sr., then all evidence of acts and declarations on the part of Lewis "Williams, Sr., are unavailing, and the defendant is entitled to your verdict.”

The fact that the first point made by the learned counsel for the appellant is one of such grave importance to the public, and so far-reaching in its effects upon the rights of persons not parties to the action for divorce, if sustained to the extent claimed by the learned counsel, and the want of time necessary to enable each member of the court to make a thorough examination of the subject for himself, and the further reason that we are all agreed that the judgment must be reversed for the refusal of the court to instruct the jury as requested by the counsel for the defendant, has induced us to leave that question undecided.

That the instructions which are above set forth, and which were requested by the defendant’s counsel, or some instructions equivalent thereto, should have been given to the jury, is apparent upon the evidence in the case. The plaintiff had proved a marriage solemnized between herself and the deceased at a time when the jury, from the evidence given on the trial, might have found that she was the wife of said William Jones. It is admitted by the learned counsel for the plaintiff, that it was necessary for her to show, by sufficient affirmative proof, that a lawful marriage in' fact existed between her and the deceased at the time of his death. There was no pretense that there was any direct proof of any such lawful marriage, unless the marriage on the 9th of May was a lawful marriage; and it is admitted by both parties that such marriage was void, if at that time the plaintiff had another husband living. The evidence also showed that the cohabitation, acts and declarations of the parties as to their being married and their living together as husband and wife, commenced at the date of such marriage in May, 1870.

The authorities hold, and this court is not inclined to hold otherwise, that in an action for dower the plaintiff is not required to make proof of the actual solemnization of a marriage between the plaintiff and the deceased, in whose estate she claims dower; but they also hold that the evidence must be sufficient to establish the fact of a lawful marriage between them. None of the cases hold that living and cohabiting together as husband and wife, or even the declarations of the parties that they are husband and wife, constitute a marriage in fact; or that such acts and declarations are a substitute for the marriage contract; the extent to which the authorities go is, that such evidence may be sufficient to prove a lawful marriage in fact.

The law of this state declares that marriage is a civil contract (see sec. 2328, R. S. 1878); and there is no statute law which points out in what manner the contract must be entered into to render it valid. It need not be in writing or in the presence of witnesses, but there must be an agreement between the parties that they will hold toward each other the relation of husband and wife, with all the responsibilities and duties which the law attaches to such relation, otherwise there can be no lawful marriage.

It would seem to follow, therefore, that every lawful marriage must have been entered into by the parties at some particular date or time, and that it cannot in any casó be the simple result of cohabitation or the continued conduct of the parties, which ordinarily accompany the married state. As a general rule, when a' marriage is sought to be proved by conduct, cohabitation and repute, the date of the marriage in fact, which such conduct and repute tends to establish, is the date of the commencement of such conduct and repute, and not afterwards.

It follows, therefore, that when the evidence shows that at the time of the commencement of the cohabitation and conduct from which it is sought to prove a marriage in fact, there was in fact no such marriage, the mere continuance of such cohabitation and conduct, without something more to indicate that there had been a change in the relations of- the parties to each other, would not be sufficient to show a marriage in fact subsequent to the commencement of such cohabitation and conduct.

In the case at bar, if the jury had found that the marriage of the parties on May 9, 1870, was void because of the fact that the plaintiff had another husband then living, and if they had also found that all the acts, conduct and declarations of the parties after the date of the divorce of the plaintiff from such former husband, “ arose from and was the result of such void ceremony,” such finding, we think, would have negatived the inference of any marriage in fact between the parties subsequent to such divorce, and, as a consequence, have defeated the plaintiff’s recovery.

The same consequences would have resulted from a finding that all the acts, conduct and declarations of Lewis Williams, Sr., were in consequence of a marriage with the plaintiff when she was the wife of another, and not in consequence of any marriage with her after her divorce from such husband; because such finding would necessarily have negatived any inference that he had contracted any marriage in fact with the plaintiff after such divorce. However ignorant Lewis Williams, Sr., may have been of the fact that the plaintiff had another husband living at the time he married her, such marriage was absolutely void as to him, notwithstanding his ignorance and good faith; and he could only make her his lawful wife by some marriage in fact, after the divorce of her former husband.

We are of the opinion, also, that the third instruction requested should have been given, and that the general charge did not cure the error of the refusal. It would seem from the very nature of the matter in issue, that if the jury found that no marriage was in fact ever *solemnized or contracted between the plaintiff and the deceased, all the acts and declarations of the parties were of no avail. The only object in proving the acts and delarations of the parties was to establish the fact that a marriage was contracted between them; and if the jury found, as a matter of fact, that no marriage was in fact contracted, then all the other matters introduced into the case were of no consequence.

The only instructions given to the jury on the subject of what evidence was necessary to establish a marriage between the parties, were the following. At the request of the plaintiff the court gave this instruction: “ In an action by a widow to recover dower in the lands of her deceased husband, it is not necessary for her to make strict proof of marriage; but proof by cohabitation as husband and wife, acts and declarations- of the husband recognizing her as his wife, and conduct of the parties, may be sufficient.” In the general charge, the court upon this subject said: “And you will determine from a preponderance of the testimony, whether the plaintiff was the lawful wife of Lewis Williams, Sr., and is his widow.” The court also charged the jury that, if they found that the plaintiff had another husband living at the time of her marriage to Williams, on the 9th of May, 1870, then such marriage was void, and she did not thereby become the wife of said Williams; but he did not instruct the jury that if such marriage of the 9th of May, 1870, was void, she could not recover in the action.

The case was submitted to the jury upon the issue as to whether there had been a marriage in fact between the plaintiff and the deceased, after the plaintiff had obtained a divorce from William Jones, upon the theory that it was entirely immaterial to the determination of that issue, that the cohabitation and living together as husband and wife upon which the plaintiff relied to establish such marriage, commenced at a time when it was impossible for them to contract a lawful marriage. This was undoubtedly an erroneous view of the case.

Courts cannot but look with suspicion upon a claim of marriage founded upon evidence of cohabitation and conduct which is consistent with the fact of actual marriage, where the evidence affirmatively shows that at the time such cohabitation and conduct commenced, there was in fact no marriage, and that such cohabitation and conduct was meretricious and in violation of law. When such fact is shown, the effect of the evidence upon the question of a marriage in fact at the date of the commencement of such unlawful cohabitation and conduct, is entirely destroyed; and in order to establish a marriage subsequent to the commencement of such unlawful and meretricious conduct, by continued cohabitation, conduct and declarations of the parties, or by reputation, there should be some affirmative evidence showing that the subsequent relations of the parties were changed, and that that which was meretricious and unlawful in its commencement had been rendered lawful.

It would require much less proof to satisfy either a court or jury that there was a marriage in fact between persons in good repute, and as to whom there was no obstacle to marriage, when the proof of marriage depended upon the fact of cohabitation as husband and wife, and the recognition of each other as such, than when it appeared affirmatively that one or both of the parties claiming a marriage, upon like proofs, were at the time of the commencement of the cohabitation incompetent to contract marriage. And this would be especially so, if it were shown that the party claiming such marriage had full knowledge, at the time of the commencement of such cohabitation, that he or she was incompetent to contract a lawful marriage with the other party. The fact appearing that such party unlawfully commenced the cohabitation, would be strong evidence that he or she would not hesitate to continue such unlawful conduct after the disability had been removed. We think the judge of the circuit court ought to have called the attention of the jury to this view of the case, and to have at least instructed them, as requested by tbe counsel for the defendant, that if they found that the plaintiff had another husband living at the time she married the deceased, in May, 1870, they must then inquire whether there was any sufficient evidence in the case, from which they could find a marriage in fact between the parties subsequent to the time of her divorce from such former husband; and that he should also have instructed them that, if the continued cohabitation and conduct of the parties, and their declarations as to their being married and being husband and wife, referred to the marriage made in May, 1870, and at a time when they could not lawfully marry, and not to any marriage in fact contracted after the plaintiff’s divorce, then they must find that no marriage in fact was proven.

The general rule upon the question of proof of marriage by proof of cohabitation, conduct and declaration of the parties, is stated by a learned judge as follows: “The general and ordinary presumption of the law is in favor of innocence, in questions of marriage, and of legitimacy where children are concerned. Cohabitation is presumed to be lawful till the contrary appears. "Where, however, the connection between the parties is shown to have had an illicit origin, and to be criminal in its nature, the law raises no presumption of marriage.” 2 Kent, 87; Jackson v. Claw, 18 Johns., 346; 2 Green1. Ev., § 464; Physick's Estate, 4 Am. L. Reg. (N. S.), 418. The presumption against marriage, where the connection between the parties is shown to have been illicit in origin, may, however, be overcome by proofs showing that the original connection has changed in its character, and a subsequent marriage may be established by circumstances, without actual proof of a marriage in fact. The cases cited by the learned counsel for the respondent in their brief in this case, fully establish this point. The following cases also illustrate the same subject: Starr et al. v. Peck, 1 Hill, 270; Clayton v. Wardell, 4 N. Y., 230; Caujolle v. Ferrie, 23 N. Y., 90; O' Gara v. Eisenlohr, 38 N. Y., 296; Foster v. Hawley, 8 Hun, 68. The rule laid down in the last case cited is stated as follows: “A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it liad been changed into that of actual matrimony by mutual consent.”

We are inclined to hold the rule as above stated to be the proper rule, when applied to a case like the one at bar. Where the party claiming a marriage (on the theory that she was lawfully married to William Jones) deliberately entered into a bigamous marriage contract with the deceased, and commenced cohabitation under such contract, if, notwithstanding the fact that she knowingly commenced cohabiting with the deceased when she was the lawful wife of another, she claims a lawful marriage with such deceased after her divorce, and after she had thereby acquired the right to become his wife, she ought to be required to establish the fact of such subsequent marriage, either by express proof of the contract of marriage, or by circumstances which would clearly exclude the presumption that she continued to live with him under such illegal contract of marriage.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.

EyaN, C. J., took no part.