Renholm v. Public Administrator

The Surrogate.

An examination of the testimony in this case, but for the conclusiorea chensd by the referee, who had the opportunity to see, and could best judge of the credibility of the witnesses, would leave the matter in very serious doubt, whether or not there was a verbal agreement between the husband and the intestate, to live together as man and wife. The law is well settled in this state, that a marriage is complete, if there be a full, free, and mutual consent between parties capable of contracting, though not followed by cohabitation. (Jackson v. Winne, 7 Wend., 47.) A marriage may be inferred in ordinary cases, from cohabitation and acknowledgment, and no formal solemnization is requisite. (Clayton v. Wardell, 4 N. Y., 230; O'Gara v. Eisenlohr, 38 Id., 296; Christie v. Clark, 45 Barb., 529; Rockwell v. Tunicliff., 62 Id., 408; Van Tuyl v. Van Tuyl, 57 Id., 235.)

In this case, there is considerable evidence that the parties cohabited together as man and wife, calling each other such, and that they spoke to others of themselves as such; and while there is no evidence of an actual agreement to live together as man and wife, yet their conduct was sufficient to imply and establish that relation. The only question to be considered is whether that presumption is overcome by the testimony adduced by the public administrator. This testimony seems to be confined to a statement of the deceased, that she was never married, which doubtless referred to a formal ceremonial of marriage, and might be entirely consistent with an agreement to live as man and ivife. The only reliable evidence that she did not regard their relation, or any agreement between them, as creating the marriage relation, is to be found in the use of her maiden name, for the purpose of depositing money in the savings bank; and yet, even that was obviously untrue, from the evidence given, for she was a widow, and legitimately bore the name of her first husband, if it had not been changed by the relation between the petitioner and herself, >

The case of Van Tuyl v. Van Tuyl, above cited, was an action for partition, and the defendant claimed to be the widow of the deceased, Taylor, and entitled to dower, and that her children were entitled as heirs at law; and the proof showed that there was no solemnization of marriage between them; that the alleged wife consented, under persuasion, to receive the deceased as her husband; and they secretly cohabited together; and that she afterwards left his house, and went to live elsewhere, in a house furnished by Mr. Taylor, where she resided under an assumed name; that she had introduced Mr. Taylor as her husband, and he recognized her as his wife; and that she assumed the name for the purpose of keeping their relation from his family. These facts were held to constitute a marriage.

Suppose that the result of the cohabitation between petitioner and the intestate, had resulted in the birth of children; coudit be claimed that they, under the circumstances of this case, would be adjudged illegitimate ? Or suppose the petitioner, having ample means, after cohabiting with the deceased for a series of years, as man and wife, had abandoned the deceased; would there be any reasonable doubt that he might be made responsible for her support %

I think it a very serious question whether good morals would be better promoted by sanctioning the cohabitation of the parties in question, and attaching to it the liabilities of the marital relations, than by holding that such cohabitation was meretricious, and creating no marital obligation.

The petitioner, as the wife of the decedent, is entitled to letters of administration upon the estate.

Decree accordingly.