While the predominant idea of the testator's mind, when
discovered, is to be heeded as against all doubtful and conflicting
provisions which might defeat it, effect must be given to all the
words of a will if by the rules of law it can be done, and the
words "without leaving a wife or child or children" will not be
construed as "without leaving a wife and child or children,"
notwithstanding a general dominant interest on the part of the
testator that his real estate should descend only through his
sons.
A man and woman, neither of whom was a resident of Virginia, and
who had not obtained any marriage license, went through a ceremony
in Virginia which the woman thought was a marriage by a clergyman;
they immediately went to New Jersey, she assuming the man's name;
they afterwards went to Maryland and then returned to New Jersey
permanently, where they lived and cohabited as husband and wife and
were so regarded for many years until his death, she joining in a
mortgage with him, and also being described in his wills as his
wife; she meanwhile and, prior to the later residence in New
Jersey, had ascertained that the person performing the ceremony was
not a minister, and that there was no license, but the cohabitation
continued and there was testimony that the man assured her that
they were married, and afterwards, in his last will, he appointed
his wife executrix and she qualified as such.
Held that:
Marriage in fact, as distinguished from a ceremonial marriage,
may be proved by habit and repute, and, except in cases of adultery
and bigamy, when actual proof is required, may be inferred from
continued cohabitation
Page 205 U. S. 424
and reputation, and even though, in view of the statutory
requirement in those states, the marriage might have been invalid
in Virginia for want of license, and in Maryland for want of
religious ceremony, the cohabitation in good faith and reputation
during their residence in New Jersey, and their conduct towards
each other from the time of the ceremony until the man's death,
established an agreement between the parties
per verba de
praesenti to become husband and wife which was as effective to
establish that status in New Jersey as if made in words of the
present tense after the parties had become domiciled in that
state.
25 App. D.C. 567 affirmed.
The facts are stated in the opinion.
Page 205 U. S. 428
MR. JUSTICE HARLAN delivered the opinion of the Court.
This suit was originally brought for the partition or sale
of
Page 205 U. S. 429
certain real estate in the City of Washington devised by the
will (and codicils thereto) of Nicholas Travers, who died in the
year 1849, leaving four sons and three daughters.
The only parts of that estate remaining in dispute are certain
lots in Square 291 in Washington, and the questions to be
determined depend upon the construction of that will and upon the
evidence touching the alleged marriage of James Travers, a son of
the testator, with Sophia V. Grayson.
By the first item of the will, certain lots are devised to the
testator's son Elias "and his heirs and assigns forever in fee
simple." By the same item, other lots are devised to the same son,
"which last two devises shall be subject to the general provision
hereinafter made in case of any sons dying without leaving a wife
or child or children."
By the second item, the testator devised Lot 5 in Square 291 to
his son "Joseph Travers and his heirs forever," and two other
specified lots "to him and his heirs forever, in fee simple," Lot 5
"being subject to the general provision aforesaid hereafter
made."
By the third item, he devised to his son Nicholas and his heirs
forever certain lots in Square 291 "subject to the general
provision hereinafter made;" also "to him and his heirs forever, in
fee simple," other real estate in Square 36, and a designated
parcel of ground in Square 291, "said piece or parcel of ground to
be subject to the general provision hereafter made."
By the fourth item, certain devises are made to the son "James
Travers and his heirs forever," "all of which devises are to be
subject to the general provision hereinafter made."
Here follows at the close of the fourth item, the "general
provision" referred to:
"With regard to the several estates hereinbefore devised to my
several sons, it is hereby declared to by my will, and I do order
and direct, as a general provision, that, if any of my sons should
die without leaving a wife or a child or children living at his
death, then his estate herein devised to him, saving and excepting
those portions thereof expressly granted and so named to be 'in fee
simple,' and which they
Page 205 U. S. 430
can sell and dispose of as they think fit, shall go, and be
invested in fee, to my surviving sons and the child or children of
such as may be dead, such child or children representing the share
of the father; but if either of my sons shall at his death, leave a
wife either with or without a child or children, such wife shall be
entitled to her dower rights and privileges."
This was followed in the will by certain devises for the benefit
of the daughters, as well as by several codicils to the will, but
it is not necessary to give their provisions in detail.
By a codicil dated June 26, 1848, the testator revoked certain
parts of his will, providing:
"And in lieu thereof, I do hereby give and devise all of said
lots or part of lots so as aforesaid described, with the house and
other improvements and appurtenances, to my son James and his
heirs, subject to the express stipulations and restrictions
contained in the will to which this is a codicil, wherein I declare
that all and every portion of my real estate not devised by the use
of the words 'in fee simple' shall be held by such devisees for
life, and then according to stipulations and restrictions as
therein contained and declared by said will."
It is contended here, as it was in the courts below, that the
words in the above general provision that "if any of my sons should
die without leaving a wife or child or children living at his
death" should be interpreted as if it read "if any of my sons
should die without leaving a wife and child or children living at
his death." The court is thus asked, by interpretation, to
substitute the word "and" in place of "or" in the above
sentence.
Looking at all the provisions of the will and ascertaining, as
best we may, the intention of the testator, we perceive no reason
for interpreting the words used by him otherwise than according to
their ordinary, natural meaning.
It is insisted by appellants that the general dominant purpose
of the testator was that his real estate should descend only
through his sons, and that his daughters and their descendants
should have no share therein. And the doctrine is invoked
Page 205 U. S. 431
that
"the predominant idea of the testator's mind, if apparent, is
heeded as against all doubtful and conflicting provisions which
might of themselves defeat it. The general intent and particular
intent being inconsistent, the latter [the particular] must be
sacrificed to the former [the general intent]."
Schouler on Wills, § 476. This general doctrine is not
controverted, but there are other cardinal rules in the
interpretation of wills which must be regarded. Mr. Justice Story,
speaking for this Court, said that effect must be given
"to all the words of a will if by the rules of law it can be
done. And where words occur in a will, their plain and ordinary
sense is to be attached to them, unless the testator manifestly
applies them in some other sense."
Wright v.
Denn, 10 Wheat. 204,
23 U. S. 239.
"The first and great rule in the exposition of wills," said Chief
Justice Marshall, "to which all other rules must bend, is that the
intention of the testator expressed in his shall prevail, provided
it be consistent with the rules of law."
Smith v.
Bell, 6 Pet. 68,
31 U. S. 75;
Finlay v.
King, 3 Pet. 346,
28 U. S. 377.
The same thought, in substance, was expressed by Lord Chancellor
Eldon in
Crooke v. De Vandes, 9 Ves. 197, 205. He said
that,
"where words have once got a clear, settled, legal meaning, it
is very dangerous to conjecture against that, upon no better
foundation than simply that it is improbable the testator could
have meant to do one thing by one set of words, having done another
thing, using other words, as to persons in the same degree of
relation to him."
It would seem clear that the words "without leaving a wife or
child or children," where they first appear in the above general
provision, were purposely chosen. They appear three times in the
will, and their usual meaning is not doubtful. We think the
testator meant "or," not "and." The court would not be justified in
making the proposed substitution unless the whole context of the
will plainly and beyond question requires that to be done in order
to give effect to the will of the testator. That the words in the
general provision "without leaving a wife or a child or children"
were deliberately selected is to
Page 205 U. S. 432
some extent shown by the last sentence in the first item of the
will, "which two devises shall be subject to the general provision
hereinafter made in case of any sons dying without leaving a wife
or child or children." We do not think that the testator used the
word "or," intending thereby to convey the same thought as would be
expressed by "and." We concur with the court of appeals, speaking
by Chief Justice Shepard, in holding that the words in question are
unambiguous, and their obvious, ordinary meaning must not be
defeated by conjecture. 25 App.D.C. 567, 576.
The important question remains whether James Travers, the son of
the testator, died leaving a wife or a child or children. If he
did, then the decree below must be affirmed.
The original bill averred that James Travers died in 1883
"without widow or lawful child or children or descendants of a
child or children surviving him." This averment was not
specifically denied in the answers, but in the progress of the
cause, the defendants, children of the sisters of James Travers,
amended their answer and alleged that he left surviving him
"his widow, Sophia V. Travers, now Sophia V. O'Brien, who was
his lawful wife at the time of his death and who had been his
lawful wife for many years prior thereto, and he left one child,
Annie E. Travers, one of the defendants herein, who was his lawful
child."
The issue thus made constituted the principal matter to which
the proof was directed. Both of the courts below held that, under
the evidence, Sophia V. was to be deemed the lawful wife of James
Travers at the time of his death. Children were born to them, but
they died very young. It is conceded that they left no child
surviving them, Annie E. Travers being only an adopted child.
The appellants insisted throughout the case, and now insist,
that the relation between James Travers and Sophia V. was not at
any time one of a matrimonial cohabitation, but an illicit or
meretricious cohabitation which did not create the relation of
husband and wife.
Upon a careful scrutiny of all the evidence as to the
alleged
Page 205 U. S. 433
marriage, we think that the following facts may be regarded as
established:
1. James Travers, whose domicil was in the District of Columbia,
and Sophia V. Grayson, whose domicil was in West Virginia, were in
Alexandria together on the fifteenth of August, 1865, when some
sort of marriage ceremony (exactly what does not appear) was
performed by a friend of Travers who the woman, then only about
seventeen years of age and without living parents, supposed at the
time was a minister, entitled to officiate in that capacity at a
marriage. She thought it was a real marriage by a minister,
although he did not produce or have any license to solemnize the
marriage of these parties. It must be taken upon the evidence that
he was not a minister. By the statutes of Virginia then in force,
it was provided:
"Every marriage in this state shall be under a license and
solemnized in the manner herein provided, but no marriage
solemnized by any persons professing to be authorized to solemnize
the same shall be deemed or adjudged to be void, nor shall the
validity thereof be in any way affected on account of any want of
authority in such persons, if the marriage be in all other respects
lawful, and be consummated with a full belief on the part of the
persons so married, or either of them, that they have been lawfully
joined in marriage."
2. Immediately after the affair at Alexandria, the parties --
the woman, from and after that occasion, assuming the name of Mrs.
Travers -- left Virginia and went to Shrewsbury, New Jersey, where,
as husband and wife, they remained for a short time, after which
they went to Belair, Harford County, Maryland, living there as
husband and wife at a rented place.
3. In 1867, Travers purchased a farm in Talbot County, Maryland,
on which he lived with said Sophia until some time in 1883, when
that farm was sold, and, on account of Travers' health, they
removed to Point Pleasant, New Jersey, and purchased property
there, having lived on the Talbot County farm, as husband and wife,
for more than fifteen years. Travers died at Point Pleasant in the
latter part of the year 1883, and
Page 205 U. S. 434
five years after his death the woman, claiming to be and
recognized in the community as the widow of James Travers, married
a lawyer of Philadelphia, the ceremony being performed at the
Catholic church in Point Pleasant.
From the fifteenth of August, 1865, up to his death, on the
first day of November, 1883 -- a period of more than eighteen years
-- Travers and Mrs. Travers continuously cohabited as husband and
wife. During all that period, they acted as if they were lawfully
husband and wife, and uniformly held themselves out as sustaining
that relation, and beyond all question they were regarded as
husband and wife in the several communities in which they lived
after leaving Alexandria in 1865. There is no proof that anyone
coming in contact with them regarded them otherwise.
5. About five or six years after the latter date, Mrs. Travers
learned, for the first time that Travers' "friend" who had
officiated at the ceremony in Alexandria was not a minister. She
was asked, when giving her deposition, this question:
"Q. After you discovered, some four or five years after you went
to live with Mr. Travers, that you had not been married to him
according to any ceremony, did he ever make any promise to you in
that regard?"
"A. Always. Poor fellow, he would have it all right --"
"Mr. Birney. We object to that."
"Q. And what did he say?"
"A. Well, he would always say that it was all right, and we were
just as much married as if we had been married before a priest or a
minister."
Upon the basis of their being husband and wife, the parties
continuously rested their relations to each other up to the death
of Travers.
6. That Travers recognized Mrs. Travers as his wife and held her
out as such appears from many facts: (a) In a mortgage executed
September 27th, 1867, to secure the balance of the purchase money
due on the Talbot County farm, the mortgagors are described, both
in the body of the mortgage as "James Travers and Sophia V.
Travers, his wife, of Harford county, in the State of Maryland,"
and in the certificate of acknowledgment as "James Travers and
Sophia V. Travers,
Page 205 U. S. 435
his wife," and she signed and acknowledged the mortgage as
Sophia V. Travers. (b) By a mutilated, holographic will dated
February 8th, 1881, and signed by James Travers, he gave, devised,
and bequeathed "to my wife, Sophy Virginia Travers," all his
household furniture, books, pictures, etc., to have and to hold the
same to her, and her executors, administrators, and assigns
forever; also, to her the use, improvement, and income of his
dwelling house and farm, "to have and to hold the same to her for
and during her natural life, and from and after the decease of my
said wife, I give and bequeath," etc., and by which, further, he
gave, devised, and bequeathed "to my wife, Sophy Virginia Travers,
for her sole use," all the rest and residue of the testator's
estate, real, personal, or mixed, of which he died seised and
possessed, or to which he should be entitled at the time of his
decease. That will concluded: "Lastly, I do nominate and appoint my
said wife sole executrix of this, my last will and testament." (c)
By a will dated at Point Pleasant, New Jersey, October 5th, 1883,
witnessed by three persons, James Travers devised to his brothers
and sisters all his interest and property in the District of
Columbia, and
"to my wife, while she remains
my widow, all my
property of every description and character not hereinbefore
disposed of, with full power of disposition and alienation,
provided, however, that in case our daughter survives her, that all
the property not disposed of prior to
my wife's decease
shall be and become the property of our said daughter, and, in the
event of
my wife's contracting
another marriage,
then, it is my will that she shall possess and enjoy as of her own
right, only one third of the property then remaining, and that the
other two thirds shall be invested and held in trust for my
daughter, Annie, and paid to her upon attaining her majority. . . .
I hereby appoint
my wife sole executrix of this, my last
will and testament."
That will was duly proven before the Surrogate of Ocean County,
New Jersey, partly by Mrs. Travers, and that officer certified that
"Sophia Virginia Travers, of the County of Ocean, the executrix
therein named, proved the
Page 205 U. S. 436
same before me and she is duly authorized to take upon herself
the administration of the estate of the testator, agreeably to said
will." That will was duly filed and recorded in the proper office
in the District of Columbia.
In view of these facts, the question is whether the woman Sophia
was to be deemed the lawful wife of James Travers at the time of
his death, in 1883. Marriage in fact as distinguished from a
ceremonial marriage, may be proven in various ways. Of course, the
best evidence of the exchange of marriage consent between the
parties would come from those who were personally present when they
mutually agreed to take each other as husband and wife, and to
assume all the responsibilities of that relation. But a legal
marriage may be established in other ways. It may be shown by what
is called habit or repute. Referring to marriage at common law,
Kent says:
"The consent of the parties may be declared before a magistrate,
or simply before witnesses, or subsequently confessed or
acknowledged, or the marriage may even be inferred from continual
cohabitation and reputation as husband and wife, except in cases of
civil actions for adultery, or in public prosecutions for bigamy or
adultery, when actual proof of the marriage is required."
2 Kent, 12th ed., 88.
Naturally, the first inquiry must have reference to what
occurred at Alexandria, Virginia, in 1865, when, as the woman
supposed -- in good faith, we think -- that there was a real, valid
marriage between her and James Travers. But we will assume for the
purposes of this case only that that marriage was not a valid one
under the laws of Virginia. We do this in deference to the decision
of the Supreme Court of Appeals of Virginia in
Offield v.
Davis, 100 Va. 250, 263, in which that court, construing the
above statute of that commonwealth, held it to be mandatory, not
directory, and had abrogated the common law in force in Virginia,
and that no marriage or attempted marriage, if it took place there,
would be held valid there, unless it be shown to have been under a
license, and solemnized according to the statute of that
commonwealth. We will also
Page 205 U. S. 437
assume, but only for the purposes of the present decision and
because of the earnest contentions of the appellants, that
cohabitation in Maryland, as husband and wife for more than fifteen
years and the recognition of that relation in the communities where
they resided in that state did not entitle James Travers and the
woman Sophia to be regarded in that state as lawfully husband and
wife. We make this assumption also because it appears here that
James Travers and Sophia V. Grayson did not become husband and wife
in virtue of any religious ceremony, and because it has been
decided by the Court of Appeals of Maryland that, in that state
"there cannot be a valid marriage without a religious ceremony,"
although "a marriage may be competently proved without the
testimony of witnesses who were present at the ceremony."
Richardson v. Smith, 80 Md. 89, 93. That court also said
in the same case:
"The law has wisely provided that marriage may be proved by
general reputation, cohabitation, and acknowledgment; when these
exist, it will be inferred that a religious ceremony has taken
place, and this proof will not be invalidated because evidence
cannot be obtained of the time, place, and manner of the
celebration of the marriage. On this point, we think it unnecessary
to do more than quote from
Redgrave v. Redgrave, 38 Md.
97:"
"Where parties live together ostensibly as man and wife,
demeaning themselves towards each other as such, and are received
into society and treated by their friends and relations as having
and being entitled to that status, the law will, in favor of
morality and decency, presume that they have been legally married.
1 Taylor, Evidence, §§ 140, 517;
Hervey v. Hervey, 2 W.Bl.
877;
Goodman v. Goodman, 28 L.J.Ch. 1;
Jewell v.
Jewell, 1 How. 219,
42 U. S.
232. Indeed, the most usual way of proving marriage,
except in actions for criminal conversation and in prosecutions for
bigamy, is by general reputation, cohabitation, and acknowledgment.
Sellman v. Bowen, 8 Gill & John. 50;
Boone v.
Purnell, 28 Md. 607."
We may refer in this connection to what the Supreme Court of the
District of Columbia,
Page 205 U. S. 438
speaking by Judge Merrick, who was learned in the law of
Maryland, said in
Thomas v. Holtzman, 7 Mackey 62, 66:
"In the first place, it is not at all apparent that it ever was
the law that a marriage
in facie ecclesiae was necessary
for the purpose of legitimating the issue. It is true that the
Court of Appeals of Maryland, in the last four or five years, has
decided that such was the law, but that decision is not binding
upon us. It is laid down by Blackstone that a marriage
per
verba de praesenti, without the intervention of a clergyman,
is a legitimate marriage. And both Story and Kent say that,
according to the universal understanding in this country, a
marriage
per verba de praesenti, without the intervention
of a clergyman, followed by cohabitation, makes a legitimate
marriage."
In
Voorhees v. Voorhees, 1 Dick.Ch. 411, 413-414, the
Court of Chancery of New Jersey said:
"Two essentials of a valid marriage are capacity and consent. .
. . Marriage is a civil contract, and no ceremonial is
indispensably requisite to its creation. A contract of marriage
made
per verba de praesenti amounts to an actual marriage
and is valid,"
quoting
O'Gara v. Eisenlohr, 38 N.Y. 296. In
Atlantic City v. Gordin, 62 N.J.L. 394, 400, the New
Jersey court of errors and appeals said:
"In the
Voorhees case, Vice Chancellor Van Fleet
concedes that a contract of marriage made
per verba de
praesenti amounts to an actual marriage and is valid, and in
the case of
Stevens v. Stevens, 56 N.J.Eq. 488, Vice
Chancellor Pitney declares the law on the subject to the same
effect, citing abundant authority."
This brings us to consider what were the relations of these
parties after selling the Maryland farm and after taking up their
residence in New Jersey in 1883. That their cohabitation, as
husband and wife, after 1865 and while they lived in Maryland,
continued without change after they became domiciled in New Jersey
and up to the death of James Travers, and that they held themselves
out in New Jersey as lawfully husband and wife, and recognized
themselves and were recognized in the community as sustaining that
relation, is manifest from
Page 205 U. S. 439
all the evidence and circumstances. It is impossible to explain
their conduct towards each other while living in New Jersey upon
any other theory than that they regarded each other as legally
holding the matrimonial relation of husband and wife. It is true
that no witness proves express words signifying an actual agreement
or contract between the parties to live together as husband and
wife. No witness heard them say, in words, in the presence of each
other, "We have agreed to take each other as husband and wife, and
live together as such." But their conduct towards each other, from
the time they left Alexandria, in 1865, up to the death of James
Travers, in 1883, admits of no other interpretation than that they
had agreed, from the outset, to be husband and wife. And that
agreement, so far as this record shows, was faithfully kept up to
the death of James Travers. When it is remembered that James
Travers assured the woman Sophia that they were as much married as
if they had been married by a priest or minister; that in his
mortgage of 1867, she is described as his wife; that in the
holographic will of 1881, he recognized her as his wife; that in
his last will, made at his domicil in New Jersey, he referred to
her as his wife, and devised by that will property to her while she
remained his widow and did not contract another marriage, and that
he made her the sole executrix of his will, describing her as his
wife -- when these facts are supplemented by the fact that they
lived together, without intermission, in good faith, and openly,
for more than eighteen years as husband and wife, nothing more is
needed to show that he and the woman had mutually agreed to sustain
the relation of husband and wife. Under the evidence in the cause,
they are to be held as having, prior to the death of James Travers,
agreed
per verba de praesenti to become husband and
wife.
Did the law of New Jersey recognize them as husband and wife
after they took up their residence in that state and lived
together, in good faith, as husband and wife, and were there
recognized as such? Upon the authorities cited, this question must
be answered in the affirmative.
Page 205 U. S. 440
We are of opinion that, even if the alleged marriage would have
been regarded as invalid in Virginia for want of license, had the
parties remained there, and invalid in Maryland for want of a
religious ceremony had they remained in that state, it was to be
deemed a valid marriage in New Jersey after James Travers and the
woman Sophia, as husband and wife, took up their permanent
residence there and lived together in that relation, continuously,
in good faith, and openly, up to the death of Travers, being
regarded by themselves and in the community as husband and wife.
Their conduct towards each other in the eye of the public, while in
New Jersey, taken in connection with their previous association,
was equivalent, in law, to a declaration by each that they did, and
during their joint lives were to, occupy the relation of husband
and wife. Such a declaration was as effective to establish the
status of marriage in New Jersey as if it had been made in words of
the present tense after they became domiciled in that state.
The views we have expressed find support in the authorities. In
Meister v. Moore, 96 U. S. 76,
96 U. S. 79, it
was said that an informal marriage by contract
per verba de
praesenti constituted a marriage at common law, and that a
statute simply requiring
"all marriages to be entered into in the presence of a
magistrate or clergyman, or that it be preceded by a license, or
publication of banns, or be attested by witnesses"
may be construed "as merely directory, instead of being treated
as destructive of a common law right to form the marriage relation
by words of present assent."
In
Maryland v. Baldwin, 112 U.
S. 490,
112 U. S.
494-495, the Court said:
"It is proper to say that, by the law of Pennsylvania, where, if
at all, the parties were married, a marriage is a civil contract,
and may be made
per verba de praesenti -- that is, by
words in the present tense, without attending ceremonies, religious
or civil. Such is also the law of many other states in the absence
of statutory regulation. It is the doctrine of the common law. But,
where no such ceremonies are required, and no record is made to
attest the marriage, some public recognition
Page 205 U. S. 441
of it is necessary as evidence of its existence. The protection
of the parties and their children and considerations of public
policy require this public recognition, and it may be made in any
way which can be seen and known by men, such as living together as
man and wife, treating each other and speaking of each other in the
presence of third parties as being in that relation, and declaring
the relation in documents executed by them whilst living together,
such as deeds, wills, and other formal instruments."
So, in
Hoggan v. Craigie, Macl. & Rob. 942, 965, in
which Lord Chancellor Cranworth, referring to contracts of marriage
per verba de praesenti, said:
"It is not necessary to prove the contract itself;
it is
sufficient if the facts of the case are such as to lead to
satisfactory evidence of such a contract's having taken place;
upon this principle the acknowledgment of the parties, their
conduct towards each other, and the repute consequent upon it, may
be sufficient to prove a marriage. . . . Everything therefore is
pertinent and relevant in an inquiry like the present which
indicates the present or previous consent of the parties."
Again, in
Campbell v. Campbell, known as the
Breadalbane case, L.R. 1, Sc.App. 182, 192, 196, 211, Lord
Chancellor Chelmsford said:
"Habit and repute . . . arise from parties' cohabiting together
openly and constantly, as if they were husband and wife, and so
conducting themselves towards each other for such a length of time
in the society or neighborhood of which they are members as to
produce a general belief that they are really married."
In the same case, Lord Westbury, after observing that it might
not be strictly correct to speak of cohabitation with habit and
repute as a mode of contracting marriage, said:
"It is rather a mode of making manifest to the world that tacit
consent which the law will infer to have been already interchanged.
If I were to express what I collect from the different opinions on
the subject, I should rather be inclined to express the rule in the
following language: that cohabitation as husband and wife is a
manifestation of the parties having consented to contract that
relation
inter se.
Page 205 U. S. 442
It is a holding forth to the world, by the manner of daily life,
by conduct, demeanor, and habit, that the man and woman who live
together have agreed to take each other in marriage and to stand in
the mutual relation of husband and wife, and when credit is given
by those among whom they live, by their relatives, neighbors,
friends, and acquaintances, to these representations and this
continued conduct, then habit and repute arise and attend upon the
cohabitation. The parties are holden and reputed to be husband and
wife, and the law of Scotland accepts this combination of
circumstances as evidence that consent to marry has been lawfully
interchanged."
In his treatise on Domestic Relations, Eversley says:
"Marriage may also be proved between the parties by their
conduct towards each other, and the first consent need not be
proved;"
"it is sufficient if the facts of the case are such as to lead
to satisfactory evidence of such a contract having taken place; the
acknowledgment of the parties, their conduct towards each other,
and the repute consequent upon it, may be sufficient to prove a
marriage."
P. 41.
See also 2 Greenleaf on Evidence (Harriman's
ed.), §§ 461, 462, and notes; 3 Wigmore on Evidence, §§ 2082, 2083,
and authorities cited.
Without further discussion or citation of authorities, we
adjudge that the courts below did not err in holding that, under
the evidence, James Travers and the Mrs. Travers, who lived with
him constantly and openly as his wife for more than eighteen years,
were, in law, to be deemed husband and wife at the time of his
death in New Jersey in 1883. It results from this view that the
decree of the Court of Appeals, affirming the decree of the Supreme
Court of the District, must itself be affirmed.
It is so ordered.
MR. JUSTICE McKENNA and MR. JUSTICE MOODY did not participate in
the decision of this case.
MR. JUSTICE HOLMES, dissenting:
I feel some doubts in this case which I think that I ought
Page 205 U. S. 443
to state. I understand it to be assumed, as it must be admitted,
that James Travers and Sophia V. Grayson lived together for many
years, calling themselves man and wife, when they were not man and
wife, and probably knew that they were not man and wife. This
condition of things lasted from 1865, the time of the pretended
marriage in Virginia, to which their cohabitation referred for its
justification, until 1883, the year of James Travers' death. So
long as they lived in Maryland -- that is, until some time in 1883
-- if they had attempted to make their union more legitimate by
simple mutual agreement they could not have done it. Therefore, the
instances of James Travers calling Sophia his wife during that
period may be laid on one side.
Just before he died, Travers moved to New Jersey and there made
his will. As in Maryland, he spoke of his wife in that instrument,
and, as I understand it, the decision that he was married must rest
wholly on this recognition and the fact that in New Jersey a
marriage may be made without the intervention of a magistrate. I do
not see how these facts can be enough. Habit and repute might be
evidence of a marriage when unexplained. But they must be evidence
of a contract, however informal, to have any effect. When an
appellation shown to have been used for nearly eighteen years with
conscious want of justification continues to be used for the last
month of lifetime, I do not see how the fact that the parties have
crossed a state line can make that last month's use evidence that
in that last moment the parties made a contract which then, for the
first time, they could have made in this way.
It is imperative that a contract should have been made in New
Jersey. Therefore, even if both parties had supposed that they were
married, instead of knowing the contrary, it would not have
mattered. To live in New Jersey and think you are married does not
constitute a marriage by the law of that state. If there were
nothing else in the case, it might be evidence of marriage, but, on
these facts, the belief, if it was entertained, referred to the
original inadequate ground.
Page 205 U. S. 444
Collins v. Voorhees, 47 N.J.Eq. 555. A void contract is
not made over again or validated by being acted upon at a time when
a valid contract could be made. When a void contract is acted upon,
the remedy, when there is one, is not on the contract, but upon a
quasi-contract, for a quantum meruit. There is no such
alternative when a marriage fails.