Rooney v. Rooney

Citation34 A. 682,54 N.J.E. 231
PartiesROONEY v. ROONEY.
Decision Date20 April 1896
CourtNew Jersey Court of Chancery

(Syllabus by the Court.)

Action by Arthur J. Rooney against Helen P. Rooney, otherwise Helen P. Barry, to annul a marriage. Dismissed.

M. W. Van Winkle, for complainant.

Joseph A. McCreery, for defendant.

PITNEY, V. C. The object of this suit is to procure a judicial declaration by this court that a contract and ceremony of marriage entered into between the parties was a nullity, by reason of the prior hymeneal contract of the complainant with another woman, who was his living and lawful wife at the time of the later contract The bill alleges complainant's marriage with one Mary Tole, in Richmond, Va., May 18, 1862, and again with the defendant Helen F. Barry, on July 14, 1894, at which time Mary Tole was living. The bill was filed December 4, 1894. The answer puts complainant upon proof both of the prior marriage, and the continued life of the alleged prior wife. In fact, the allegation of continued life is not found in the bill, and must be considered as added by way of amendment. At the hearing, complainant attempted to sustain the burden thus cast upon him—First as to the marriage, by his own evidence, and an exemplified copy of a writing on file in the hustings court of Richmond, Va.; and, second, as to the continued life of the first wife, by a witness who saw her shortly before the hearing. Counsel for defendant attacked each of these pieces of evidence,—as to the writing, that it is incompetent and insufficient for that purpose; as to the evidence of the complainant, that it is wholly unworthy of belief; and, as to that of the witness to the continued life of the first wife, that the witness is not only unworthy of belief, but did not manifest sufficient acquaintance with the first wife to give reliable evidence. Counsel for defendant took the further ground that admitting the first marriage, and the continued life of the first wife, yet the complainant procured the defendant to marry him by practicing upon her a fraud so gross as to close against him the door of a court of equity. It is hardly necessary to cite authority for the position that a complainant who comes into court under the circumstances above stated, and asks a decree of nullity, the result of which is to declare one whom he has sworn to love and cherish as a wife to be no more than a concubine, and her offspring, the fruit of the unlawful communion (born pending the suit), a bastard, must prove his case with the utmost strictness. The same rule applies in such a case as on an indictment for bigamy. The court in such cases is bound to act as the guardian of the helpless infant, and watch its rights and interests with jealous care.

I will consider first the sufficiency of the documentary proof of the first marriage: The document offered for that purpose is a duly exemplified copy of (to use the language of the clerk of the hustings court of the city of Richmond) "a marriage license, now on file in the clerk's office of said court, for the marriage of Arthur J. Rooney and Mary Tole, together with the minister's return thereon." The certificate of the clerk is dated June 19, 1895. How long such document had been so on file in his court does not in any wise appear. The license appears to have been issued under the hand of "Ro. Howard, Clerk" of the hustings court of Richmond, Va., May 2, 1862. On the same paper is a statement of the names, ages, and so forth, of the husband and wife, also signed by the clerk. Annexed, and on the same paper, is the minister's return of marriage, as follows: "I certify that on the 5th day of May, 1864, at Richmond city, I united in marriage the above named and described parties, under authority of the annexed license. John Teeling." The person so signing does not state that he is a minister of the gospel, or otherwise authorized to perform the marriage ceremony. No evidence was offered of the laws of Virginia regulating the issue of marriage licenses, or the filing of certificates thereof, nor as to the value or effect as evidence of such certificates, when filed. I am not informed as to what, if any, safeguards are thrown around such certificates by the laws of Virginia, in order to secure their genuineness, and prevent fraud and imposition. Nor does it appear that a copy of such certificate would be evidence in any court in Virginia; and, if a copy would not be evidence there, then, of course, it would not be evidence here. For all that appears, the local laws may simply provide for a safe depository of such documents for the benefit of the parties, and that the originals only can be used as evidence, upon due proof of their genuineness, and of the character of the person certifying to the ceremony. At best under present circumstances, all that the exemplification can be held to prove is that there is on file in the office of the clerk of the court in question a document in the words and figures certified to. The requisitions of the federal constitution do not require us to go further than that Our own act (P. L. 1881, p. 210; Supp. Rev. p. 288, § 8) declares that "any public records of any foreign state * * * or any copy thereof which is admissible in such state to prove the facts therein contained shall be admitted in evidence in the courts of this state," etc. This language shows the necessity of the proof of the laws of the foreign state, and it seems to me there should also be some proof of the character and authority of the person performing the ceremony. It must be remembered that a mere certificate of marriage signed by a clergyman or magistrate, unattested by any oath, and not signed by the contracting parties, cannot, upon any recognized principle, and in the absence of any enabling statute, be held to be evidence of the marriage. Hubb. Succ. pp. 247, 248, 257-259 (where the cases to that date are collected); 1 Bish. Mar., Div. & Sep. (1891) §§ 993-998, 1003-1011; 1 Whart. Ev. §§ 120, 657. A different rule prevails as to entries on an official register kept in pursuance of law. 1 Whart Ev. § 647 et seq.; 1 Bish. Mar., Div. & Sep. § 993. For these reasons I conclude that the paper in question has, of itself, for present purposes, no probative force or value.

This brings us to the other questions, which may be conveniently considered together, viz.: Is the complainant worthy of sufficient credit as a witness to warrant finding the fact of the first marriage upon his unsupported testimony? And, second, has he, by his own conduct, debarred himself from the right to relief in this court?

The proofs present a most painful case. Complainant, sworn on his own behalf, says he was born April 1, 1844; that he was married in 1862 (not 1864, as the certificate states) to Mary Tole, in Bichmond, Va.; that they lived together, off and on, until 1882; had one child, a son; that they separated in 1882, and have lived separate since 1883, under articles of separation, what purports to be a copy of which was produced; that he is an undertaker and embalmer by profession, and gives lessons therein; that he met defendant in Albany, N. Y., as a pupil in the art of embalming; that he showed her a copy of the articles of separation from his wife, and told her that his wife was living. He says that he was firmly of the belief that the effect of the deed of separation was to give him the right to marry again; that he took no legal advice upon the subject, but simply talked the matter over with the defendant; and that both of them concluded that he was free to marry again during his first wife's life. From his evidence, taken as a whole, it is plain that he induced the defendant to believe that he occupied the position of a divorced man, freed from the obligations of his first marriage; and he has the audacity to come on the stand and swear that he actually so believed. Now, the evidence shows complainant to be a man of considerable education and intelligence, and of wide experience. He pretends to have caused to be incorporated a national embalming college, of which he, as "Professor Arthur Rooney," is demonstrator and treasurer. He is familiarly known as "Professor Rooney," and, as such, lectures and gives lessons in the art of embalming. He made the defendant's acquaintance in the month of April, 1894, as a pupil, and lured her from her home in Troy, N. Y., to New York City, by a letter in which he proposed to start a monthly magazine called "The Embalmer," and employ her as an assistant editor of it. The separation agreement itself gives no countenance whatever to the idea that it did or could free the parties from the bonds of matrimony. It was prepared, and its execution supervised, by counsel; and I Infer, from the evidence and the statements of counsel at the hearing, that one of those counsel was acting under the retainer of the complainant. Now, it is quite impossible to believe that either at the time the agreement was prepared, executed, and signed, or at some subsequent period, the complainant did not ask the advice of counsel, or learn incidentally from counsel that he was still under the bonds of matrimony with his first wife. And, if it were possible to believe that he did not ask the question of counsel, it is impossible to believe that a man of his experience and intelligence did not know, from reading the document, that it did not relieve him from the matrimonial bonds. Upon these circumstances, I look upon his evidence delivered in court on this subject as a cool, deliberate falsehood. He says that, shortly after he was married to the defendant, he began to suspect that he was not at liberty to marry,— coming to such belief, not by seeking the advice of counsel, but by casual talk with his friends; and after satisfying his lust in the enjoyment of the person of the defendant for two months, with the result of pregnancy on her part, he entertained tardy but sincerely conscientious scruples as to the...

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16 cases
  • Sturm v. Sturm
    • United States
    • New Jersey Court of Chancery
    • November 7, 1932
    ...only be overcome by clear and conclusive evidence. * * *" See, also, Keller v. Linsenmyer, 101 N. J. Eq. 664, 139 A. 33; Rooney v. Rooney, 54 N. J. Eq. 231, 34 A. 682; Vreeland v. Vreeland, 78 N. J. Eq. 256, 79 A. 336, 34 L. R. A. (N. S.) 940; Sparks v. Ross, 79 N. J. Eq. 99, 80 A. 932, aff......
  • Kazin v. Kazin
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 2, 1978
    ...notwithstanding that the marriage was a nullity. Krause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 [1940]. See, also, Rooney v. Rooney, supra [54 N.J.Eq. 231, 34 A. 682]. But this doctrine is not applied where the bigamous marriage was founded upon a Mexican divorce such as we have here. Caldwe......
  • Tonti v. Chadwick.
    • United States
    • New Jersey Supreme Court
    • March 7, 1949
    ...him to invoke the general jurisdiction of equity for a decree of nullity. He was not himself innocent of wrongdoing. Rooney v. Rooney, Ch.1896, 54 N.J.Eq. 231, 32 A. 682; Kelley v. Kelley, 1894,161 Mass. 111, 36 N.E. 837, 25 L.R.A. 806, 42 Am.St.Rep. 389. And in the exercise of the statutor......
  • Hansen v. Fredo
    • United States
    • New Jersey Superior Court
    • March 29, 1973
    ...(App.Div.1951); Thompson v. Monteiro, 58 N.J.Super. 302, 156 A.2d 173 (Ch.Div.1959). This was the common law rule. Rooney v. Rooney, 54 N.J.Eq. 231, 34 A. 682 (Ch.1896). At one time there was some question as to whether a court of equity could refuse to declare a bigamous marriage void. See......
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