Hunt's Appeal

Mr. Justice Paxson

delivered the opinion of the court,

Mary Jane Jackson, the appellee, claimed $300 out of the balance in the hands of the accountant, under the Act of 1851, and also one-third of the estate as widow, the decedent having died intestate. Her claim was allowed by the Orphans’ Court; hence this appeal.

The facts have been clearly found by the learned judge of the Orphans’ Court. They are as follows: The decedent was married to Mary Jane Dongcake (alleged widow), July 23d 1871. At that time decedent had a wife living, from whom he had been separated for several years. After his second marriage, he and the said Mary Jane went to keeping house together, and lived and cohabited together as husband and wife until the death of the latter, February 16th 1874. They were known and reputed as man and wife among their mutual relatives, friends and neighbors. Two years or more before decedent’s death, his first wife commenced proceedings to obtain a divorce from him. It was during the pendency of these proceedings that he married the said Mary Jane Longcake. The decree in divorce was granted December 13th 1873, and the decedent died February 16th 1874. During the period intervening between the said decree and his death, he continued to reside with the said Mary Jane as his wife, but no actual marriage took place. From this state of facts the learned judge of the court below held that “the cohabitation and reputation of herself and decedent from the date of the divorce to the day of his death, are sufficient in law from which to presume a marriage between them, and entitle her to a share in his estate.” The presumption to which the learned judge refers is entirely demolished by his finding of facts. Cohabitation and reputation are not marriage: they are but circumstances from which a marriage may be presumed: Yardley’s Estate, 25 P. F. Smith 207. The presumption of marriage arising from such facts may always be rebutted, and wholly disappears in the face of proof that no marriage in fact had taken place. Again, the cohabitation was illicit at its commencement. It may not have been meretricious, so. far as the appellee is concerned. There is evidence to show that she was deceived, but it was clearly illegal. The general rule is, that, a relation shown to have been illicit at its commencement is presumed to continue so until proof of change. Such a relation raises no presumption of marriage. In the ease at bar the fact is found that the cohabitation was illicit at its commencement, and necessarily continued so down to the decree of divorce, and that there was not a marriage in fact between the date of the divorce and death of the decedent. This is conclusive against the appellee. She has failed to establish her claim as widow, and has of course no right io participate in the distribution of the decedent’s estate.

The decree is reversed, and it is now ordered and decreed that the balance in the hands of the accountant, $812.88, be paid to the guardian of Leonora Jackson; the costs of this appeal to be paid by the appellee.