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tions contained in the will to which this very dangerous to conjecture against that, is a codicil, wherein I declare that all and upon no better foundation than simply that every portion of my real estate not devised it is improbable the testator could have by the use of the words 'in fee simple' shall meant to do one thing by one set of words, be held by such devisees for life, and then having done another thing, using other according to stipulations and restrictions words, as to persons in the same degree of as therein contained and declared by said relation to him.” It would seem clear that will."
the words "without leaving a wife or child It is contended here, as it was in the or children,” where they first appear in the courts below, that the words in the above above general provision, were purposely general provision, that "if any of my sons chosen. They appear three times in the should die without leaving a wife or child will, and their usual meaning is not doubtor children living at his death,” should be ful. We think the testator meant "or," not interpreted as if it read “if any of my sons “and.” The court would not be justified in should die without leaving a wife and child making the proposed substitution unless the or children living at his death.” The court whole context of the will plainly and beyond is thus asked, by interpretation, to substi- question requires that to be done in order tute the word "and" in place of “or” in the to give effect to the will of the testator. above sentence.
That the words in the general provision, Looking at all the provisions of the will, "without leaving a wife or a child or chiland ascertaining, as best we may, the inten- | dren,” were deliberately selected, is to some tion of the testator, we perceive no reason extent shown by the last sentence in the first for interpreting the words used by him item of the will, "which two devises shall otherwise than according to their ordinary, be subject to the general provision herein. natural meaning.
after made in case of any sons dying withIt is insisted by appellants that the gen- out leaving a wife or child or children.” eral, dominant purpose of the testator was We do not think that the testator used the that his real estate should descend only word "or," intending thereby to convey the through his sons, and that his daughters and same thought as would be expressed by their descendants should have no share "and.” We concur with the court of ap. therein. And the doctrine is invoked that peals, speaking by Chief Justice Shepard, “the predominant idea of the testator's in holding that the words in question are mind, if apparent, is heeded as against all unambiguous, and their obvious, ordinary doubtful and conflicting provisions which meaning must not be defeated by conjecture. might of themselves defeat it. The general 25 App. D. C. 567, 576. intent and particular intent being inconsist- The important question remains whether ent, the latter [the particular] must be James Travers, the son of the testator, died sacrificed to the former [the general in- leaving a wife or a child or children. If he tent].” Schouler, Wills, $ 476. This gener did, then the decree below must be affirmed. al doctrine is not controverted, but there The original bill averred that James Traare other cardinal rules in the interpreta- vers died in 1883 "without widow or lawful tion of wills which must be regarded. Mr.) child or children or descendants of a child Justice Story, speaking for this court, said or children surviving him." This averment that effect must be given “to all the words was not specifically denied in the answers, of a will, if, by the rules of law, it can be but in the progress of the cause the defenddone. And where words occur in a will ants, children of the sisters of James Tratheir plain and ordinary sense is to be at- vers, amended their answer and alleged that tached to them, unless the testator manifest- he left surviving him "his widow, Sophia V. ly applies them in some other sense."
Travers, now Sophia V. O'Brien, who was Wright v. Denn, 10 Wheat. 204, 239, 6 L. ed. his lawful wife at the time of his death and 303, 312. "The first and great rule in the who had been his lawful wife for many ex position of wills," said Chief Justice Marshall, “to which all other rules must years prior thereto, and he left one child,
Annie E. Travers, one of the defendants bend, is that the intention of the testator expressed in his will shall prevail, provided herein, who was his lawful child.” The isit be consistent with the rules of law.”
sue thus made constituted the principal Smith v. Bell, 6 Pet. 68, 75, 8 L. ed. 322,! matter to which the proof was directed. 325; Finlay v. King, 3 Pet. 346, 377, 7 L. Both of the courts below held that under the ed. 701, 712. The same thought, in sub- evidence Sophia V. was to be deemed the stance, was expressed by Lord Chancellor lawful wife of James Travers at the time Eldon in Crooke v. De Vandes, 9 Ves. Jr. of his death. Children were born to them, 197, 205. He said that "where words have but they died very young. It is conceded once got a clear, settled, legal meaning, it is that they left no child surviving them, Annie E. Travers being only an adopted | ing to be and recognized in the community child.
as the widow of James Travers, married a The appellants insisted throughout the lawyer of Philadelphia, the ceremony being case, and now insist, that the relation be performed at the Catholic church in Point tween James Travers and Sophia V. was Pleasarit. not at any time one of a matrimonial co- From the 15th of August, 1865, up to his habitation, but an illicit or meretricious co- death, on the 1st day of November, 1883,habitation, which did not create the relation a period of more than eighteen years,—Traof husband and wife.
vers and Mrs. Travers continuously cohabUpon a careful scrutiny of all the evi-ited as husband and wife. During all that dence as to the alleged marriage we think period they acted as if they were lawfully that the following facts may be regarded as husband and wife, and uniformly held themestablished:
selves out as sustaining that relation; and 1. James Travers, whose domicil was in beyond all question they were regarded as the District of Columbia, and Sophia V. husband and wife in the several commuGrayson, whose domicil was in West Virgin-nities in which they lived after leaving ia, were in Alexandria together on the 15th Alexandria in 1865. There is no proof that of August, 1865, when some sort of mar- anyone coming in contact with them regardriage ceremony (exactly what does not ap-ed them otherwise. pear) was performed by a friend of Travers, 5. About five or six years after the latter whom the woman, then only about seventeen date Mrs. Travers learned, for the first time, years of age, and without living parents, that Traveis's "friend,” who had officiated supposed at the time was a minister, enti- at the ceremony in Alexandria, was not a tled to officiate in that capacity at a mar- minister. She was asked, when giving her riage. She thought it was a real marriage by deposition, this question: "Q. After you disa minister, although he did not produce or covered, some four or five years after you have any license to solemnize the marriage went to live with Mr. Travers, that you had of these parties. It must be taken upon the not been married to him according to any evidence that he was not a minister. By ceremony, did he ever make any promise to the statutes of Virginia then in force it was you in that regard? A. Always. Poor felprovided: "Every marriage in this state low, he would have it all right- Mr. shall be under a license and solemnized in Birney. We object to that. Q. And what the manner herein provided, but no mar- did he say? A. Well, he would always say riage solemnized by any persons professing tnat it was all right, and we were just as to be authorized to solemnize the same shall much married as if we had been married bebe deemed or adjudged to be void, nor shall fore a priest or a minister.” Upon the basis the validity thereof be in any way affected of their being husband and wife the parties on account of any want of authority in such continuously rested their relations to each persons, if the marriage be in all other re- other up to the death of Travers. spects lawful, and be consummated with a 6. That Travers recognized Mrs. Travers full belief on the part of the persons so
as his wife and held her out as such, ap. married, or either of them, that they have pears from many facts: (a) In a mortgage been lawfully joined in marriage.”
executed September 27th, 1867, to secure 2. Immediately after the affair at Alexan- the balance of the purchase money due on dria the parties—the woman, from and after the Talbot county farm, the mortgagors are that occasion, assuming the name of Mrs. described, both in the body of the mortgage Travers—left Virginia and went to Shrews- as “James Travers and Sophia V. Travers, bury, New Jersey, where, as husband and his wife, of Harford county, in the state of wife, they remained for a short time, after Maryland,” and in the certificate of acwhich they went to Belair, Harford county, knowledgment as "James Travers and SoMaryland, living there, as husband and wife, phia V. Travers, his wife," and she signed at a rented place.
and acknowledged the mortgage as Sophia 3. In 1867 Travers purchased a farm in V. Travers. (b) By a mutilated, holo. Talbot county, Maryland, on which he lived graphic will dated February 8th, 1881, and with said Sophia until some time in 1883, signed by James Travers, he gave, devised, when that farm was sold, and, on account of and bequeathed “to my wife, Sophy VirTravers's health, they removed to Point ginia Travers,” all his household furniture, Pleasant, New Jersey, and purchased prop- books, pictures, etc., to have and to hold erty there, having lived on the Talbot coun- the same to her, and her executors, administy farm, as husband and wife, for more than trators, and assigns forever; also, to her fifteen years. Travers died at Point Pleas. the use, improvement, and income of his ant in the latter part of the year 1883, and dwelling house and farm, “to have and to five years after his death the woman, claim. I hold the same to her for and during her natural life; and from and after the de- quently confessed or acknowledged, or the cease of my said wife, I give and bequeath,” marriage may even be inferred from contin. etc.; and by which, further, he gave, de- ual cohabitation and reputation as husband vised, and bequeathed “to my wife, Sophy and wife, except in cases of civil actions for Virginia Travers, for her sole use," all the adultery, or in public prosecutions for bigrest and residue of the testator's estate, amy or adultery, when actual proof of the real, personal, or mixed, of which he died marriage is required.” 2 Kent, Com. 12th seised and possessed, or to which he should ed. 88. be entitled at the time of his decease. That Naturally, the first inquiry must have will concluded: “Lastly, I do nominate and reference to what occurred at Alexandria, appoint my said wife sole executrix of this, Virginia, in 1865, when, as the woman supmy last will and testament.” (c) By a will posed,-in good faith, we think,—that there dated at Point Pleasant, New Jersey, Oc was a real, valid marriage between her and tober 5th, 1883, witnessed by three persons, James Travers. But we will assume for the James Travers devised to his brothers and purposes of this case only that that mar. sisters all his interest and property in the riage was not a valid one under the laws of District of Columbia, and "to my wife, while Virginia. We do this in deference to the she remains my widow, all my property of decision of the supreme court of appeals every description and character not herein- of Virginia in Offield v. Davis, 100 Va. 250, before disposed of, with full power of dis- 263, 40 S. E. 910, in which that court, conposition and alienation, provided, however, struing the above statute of that commonthat in case our daughter survives her, that wealth, held it to be mandatory, not direcall the property not disposed of prior to my tory, and had abrogated the common law in wife's decease shall be and become the prop- force in Virginia, and that no marriage or erty of our said daughter, and, in the event attempted marriage, if it took place there, of my wife's contracting another marriage, would be held valid there, unless it be shown then, it is my will that she shall possess and to have been under a license, and solemnized enjoy as of her own right, only one third of according to the statute of that common. the property then remaining, and that the wealth. We will also assume, but only for other two thirds shall be invested and held the purposes of the present decision, and in trust for my daughter, Annie, and paid because of the earnest contentions of the to her upon attaining her majority.
appellants, that cohabitation in Maryland, I hereby appoint my wife sole executrix of as husband and wife, for more than fifteen this, my last will and testament.” That will years, and the recognition of that relation in was duly proven before the surrogate of the communities where they resided in that Ocean county, New Jersey, partly by Mrs. state, did not entitle James Travers and the Travers, and that officer certified that "So-woman Sophia to be regarded in that state phia Virginia Travers, of the county of as lawfully husband and wife. We make Ocean, the executrix therein named, proved this assumption also because it appears here the same before me and she is duly author. that James Travers and Sophia V. Grayson ized to take upon herself the administration did not become husband and wife in virtue of the estate of the testator, agreeably to of any religious ceremony, and because it said will.” That will was duly filed and has been decided by the court of appeals of recorded in the proper office in the District Maryland that in that state "there cannot of Columbia.
be a valid marriage without a religious cereIn view of these facts, the question is mony,” although "a marriage may be comwhether the woman Sophia was to be deemed petently proved without the testimony of the lawful wife of James Travers at the witnesses who were present at the ceretime of his death, in 1883. Marriage in fact, mony.” Richardson v. Smith, 80 Md. 89, as distinguished from a ceremonial mar. 93, 30 Atl. 568. That court also said in the riage, may be proven in various ways. Of same case: “The law has wisely provided course, the best evidence of the exchange of that marriage may be proved by general marriage consent between the parties would reputation, cohabitation, and acknowledgcome from those who were personally present ment; when these exist, it will be inferred when they mutually agreed to take each that a religious ceremony has taken place; other as husband and wife, and to assume and this proof will not be invalidated beall the responsibilities of that relation. But cause evidence cannot be obtained of the a legal marriage may be established in other time, place, and manner of the celebration ways. It may be shown by what is called of the marriage. On this point we think it habit or repute. Referring to marriage at unnecessary to do more than quote from common law, Kent says: “The consent of Redgrave v. Redgrave, 38 Md. 97: 'Where the parties may be declared before a magis- parties live together ostensibly as man and trate, or simply before witnesses, or subse- 1 wife, demeaning themselves towards each other as such, and are received into society, residence in New Jersey in 1883. That their and treated by their friends and relations cohabitation, as husband and wife, after as having and being entitled to that status, 1865 and while they lived in Maryland, conthe law will, in favor of morality and decen- tinued without change after they became cy, presume that they have been legally mar- domiciled in New Jersey and up to the death ried. 1 Taylor, Ev. $$ 140, 517; Hervey v. of James Travers, and that they held themHervey, 2 W. Bl. 877; Goodman v. Goodman, selves out in New Jersey as lawfully hus28 L. J. Ch. N. S. 745; Jewell v. Jewell, band and wife, and recognized themselves 1 How. 219, 232, 11 L. ed. 108, 114. Indeed, and were recognized in the community as the most usual way of proving marriage, ex sustaining that relation, is manifest from cept in actions for criminal conversation and all the evidence and circumstances. It is in prosecutions for bigamy, is by general impossible to explain their conduct towards reputation, cohabitation, and acknowledg. each other while living in New Jersey upon ment. Sellman v. Bowen, 8 Gill & J. 50, 29 any other theory than that they regarded Am. Dec. 524; Boone v. Purnell, 28 Md. each other as legally holding the matrinio. 607, 92 Am. Dec. 713.'” We may refer, in nial relation of husband and wife. It is this connection, to what the supreme court true that no witness proves express worus of the District of Columbia, speaking by signifying an actual agreement or contract Judge Merrick, who was learned in the law between the parties to live together as husof Maryland, said in Thomas v. Holtzman, band and wife. No witness heard them say, 7 Mackey, 62, 66: “In the first place, it is in words, in the presence of each other, "We not at all apparent that it ever was the law have agreed to take each other as husband that a marriage in facie ecclesice was neces- and wife, and live together as such.” But sary for the purpose of legitimating the is- their conduct towards each other, from the sue. It is true that the court of appeals of time they left Alexandria, in 1865, up to Maryland in the last four or five years has the death of James Travers, in 1883, admits decided that such was the law, but that de- of no other interpretation than that they cision is not binding upon us. It is laid had agreed, from the outset, to be husband down by Blackstone that a marriage per and wife. And that agreement, so far as verba de presenti, without the intervention this record shows, was faithfully kept up to of a clergyman, is a legitimate marriage. the death of James Travers. When it is And both Story and Kent say that, accord-remembered that James Travers assured the ing to the universal understanding in this woman Sophia that they were as much marcountry, a marriage per verba de præsenti, ried as if they had been married by a priest without the intervention of a clergyman, or minister; that in his mortgage of 1867 followed by cohabitation, makes a legiti- she is described as his wife; that in the mate marriage."
holographic will of 1881 he recognized her In Voorhees v. Voorhees, 46 N. J. Eq. as his wife; that in his last will, made at 411, 413, 414, 19 Am. St. Rep. 404, 406, his domicil in New Jersey, he referred to her 19 Atl. 172, 173, the court of chancery of as his wife, and devised by that will properNew Jersey said: "Two essentials of a valid ty to her while she remained his widow and marriage are capacity and consent.
did not contract another marriage; and that Marriage is a civil contract, and no cere- he made her the sole executrix of his will, monial is indispensably requisite to its cre- describing her as his wife,—when these facts ation. A contract of marriage made per are supplemented by the fact that they lived verba de præsenti amounts to an actual together, without intermission, in good marriage and is valid,” quoting O'Gara v. faith, and openly, for more than eighteen Eisenlohr, 38 N. Y. 296. In Atlantic City years as husband and wife, nothing more R. Co. v. Goodin, 62 N. J. L. 394, 400, 45 L. is needed to show that he and the woman R.A. 671, 674, 72 Am. St. Rep. 652, 658, 42 had mutually agreed to sustain the relation Atl. 333, 336, the New Jersey court of errors of husband and wife. Under the evidence and appeals said: "In the Voorhees Case in the cause they are to be held as having, Vice Chancellor Van Fleet concedes that a prior to the death of James Travers, agreed contract of marriage made per verba de per verba de præsenti to become husband præsenti amounts to an actual marriage and and wife. is valid, and in the case of Stevens v. Stev- Did the law of New Jersey recognize them ens, 56 N. J. Eq. 488, 38 Atl. 460, Vice as husband and wife after they took up Chancellor Pitney declares the law on the their residence in that state and lived tosubject to the same effect, citing abundant gether, in good faith, as husband and wife, authority.”
and were there recognized as such? Upon This brings us to consider what were the the authorities cited this questier must be relations of these parties after selling the answered in the affirmative. Maryland farm and after taking up their We are of opinion that even if the alleged marriage would have been regarded as ments executed by them whilst living toinvalid in Virginia for want of license, had gether, such as deeds, wills, and other formthe parties remained there, and invalid in al instruments." Maryland for want of a religious ceremony, So in Hoggan v. Craigie, Macl. & Rob. had they remained in that state, it was to 942, 965, in which Lord Chancellor Cranbe deemed a valid marriage in New Jersey worth, referring to contracts of marriage after James Travers and the woman Sophia, per verba de præsenti, said: “It is not necesas husband and wife, took up their perma- sary to prove the contract itself; it is suffinent residence there and lived together in cient if the facts of the case are such as to that relation, continuously, in good faith, lead to satisfactory evidence of such a conand openly, up to the death of Travers, be-tract having taken place; upon this prin. ing regarded by themselves and in the com-ciple the acknowledgment of the parties, munity as husband and wife. Their con- their conduct towards each other, and the duct towards each other in the eye of the repute consequent upon it, may be sufficient public, while in New Jersey, taken in con- to prove a marriage.
Everything, nection with their previous association, was therefore, is pertinent and relevant in an equivalent, in law, to a declaration by each inquiry like the present, which indicates the that they did, and during their joint lives present or previous consent of the parties." were to, occupy the relation of husband and Again, in Campbell v. Campbell, known as wife. Such a declaration was as effective the Breadalbane Case, L. R. 1 H. L. Sc. App. to establish the status of marriage in New Cas. 182, 192, 196, 211, Lord Chancellor Jersey as if it had been made in words of Chelmsford said: "Habit and repute .. the present tense after they became domi- arise from parties cohabiting together openciled in that state.
ly and constantly, as if they were husband The views we have expressed find sup- and wife, and so conducting themselves toport in the authorities. In Meister v. wards each other for such a length of time Moore, 96 U. S. 76, 79, 24 L. ed. 826, 827, it in the society or neighborhood of which they was said that an informal marriage by con- are members as to produce a general belief tract per verba de præsenti constituted a that they are really married.” In the same marriage at common law, and that a statute case Lord Westbury, after observing that it simply requiring "all marriages to be en- might not be strictly correct to speak of tered into in the presence of a magistrate cohabitation with habit and repute as a or clergyman, or that it be preceded by a mode of contracting marriage, said: “It is license, or publication of banns, or be at- rather a mode of making manifest to the tested by witnesses,” may be construed "as world that tacit consent which the law will merely directory, instead of being treated infer to have been already interchanged. as destructive of a common-law right to If I were to express what I collect from the form the marriage relation by words of different opinions on the subject I should present assent.”
rather be inclined to express the rule in In Maryland use of Markley v. Baldwin, the following language: that cohabitation as 112 U. S. 490, 494, 495, 28 L. ed. 822, 824, 5 husband and wife is a manifestation of the Sup. Ct. Rep. 278, the court said: "It is parties having consented to contract that reproper to say that, by the law of Pennsyl. lation inter se.
lation inter se. It is a holding forth to the vania, where, if at all, the parties were world, by the manner of daily life, by conmarried, a marriage is a civil contract, and duct, demeanor, and habit, that the man and may be made per verba de presenti; that is, woman who live together have agreed to by words in the present tense, without at- take each other in marriage and to stand in tending ceremonies, religious or civil. Such the mutual relation of husband and wife; is also the law of many other states in the and when credit is given by those among absence of statutory regulation. It is the whom they live, by their relatives, neighdoctrine of the common law. But, where bors, friends, and acquaintances, to these no such ceremonies are required, and no representations and this continued conduct, record is made to attest the marriage, some then habit and repute arise and attend upon public recognition of it is necessary as evi- the cohabitation. The parties are holden dence of its existence. The protection of the and reputed to be husband and wife; and parties and their children and considera- the law of Scotland accepts this combination tions of public policy require this public of circumstances as evidence that consent to recognition; and it may be made in any way marry has been lawfully interchanged.” In which can be seen and known by men, such his treatise on Domestic Relations, Eversley as living together as man and wife, treating says: “Marriage may also be proved between each other and speaking of each other in the the parties by their conduct towards each presence of third parties as being in that other, and the first consent need not be relation, and declaring the relation in docu- 1 proved; “it is sufficient if the facts of the