34 S.E. 477 (Va. 1899), Eldred v. Eldred

Citation:34 S.E. 477, 97 Va. 606
Opinion Judge:Cardwell, J.
Party Name:Eldred & Others v. Eldred
Attorney:C. M. White and John A. C. Keith, for the appellants. A. W. Armstrong and Eppa Hunton, Jr., for the appellee.
Case Date:November 16, 1899
Court:Supreme Court of Virginia

Page 477

34 S.E. 477 (Va. 1899)

97 Va. 606

Eldred & Others



Supreme Court of Virginia

November 16, 1899

Appeal from a decree of the Circuit Court of Fauquier County, pronounced January 31, 1898, in a suit in chancery, wherein the appellee was the complainant, and the appellants and others were the defendants.



The opinion states the case.

C. M. White and John A. C. Keith, for the appellants.

A. W. Armstrong and Eppa Hunton, Jr., for the appellee.


Cardwell, J.

Page 478

[97 Va. 607] E. A. Eldred, an infant, by his next friend, instituted a suit in the Circuit Court of Fauquier county, in which he alleged that E. B. Eldred died seised and possessed of an undivided moiety of certain real estate in the county of Fauquier, the other moiety thereof being owned by John A. Eldred; that E. B. Eldred died intestate, leaving surviving him a widow, Zellah K. Eldred, and the complainant, his only child and heir at law; that the brothers and sisters of E. B. Eldred denied that complainant and the said widow were entitled to any share of the estate of E. B. Eldred, and the prayer of the bill is that Zellah K. Eldred, and the parties who would have been the heirs at law of E. B. Eldred but for the existence of the widow and complainant, be made parties defendant thereto; that the rights of the widow and complainant be determined, and that the real estate owned jointly by E. B. Eldred and John A. Eldred be partitioned between John A. Eldred and the complainant.

To this bill all of the defendants filed an answer, except Zellah [97 Va. 608] K. Eldred (so called), in which, while not denying that the complainant is the natural son of E. B. Eldred, they deny that he left any child, the offspring of a lawful marriage. Depositions were taken, and exhibits filed, and upon the hearing of the cause, the judge of the Circuit Court decreed that Zellah K. Eldred is the widow, and the complainant the lawful and sole heir of E. B. Eldred, deceased. From this decree an appeal was obtained to this court.

The only question, therefore, is whether E. B. Eldred and Zellah L. Keiner, called in this record Zellah K. Eldred, the mother of complainant, were ever married.

It appears that in 1895, there were residing in Fauquier county a family consisting of A. P. Wetmore, his wife Sarah K., and three daughters, named respectively, Zellah L., Lizzie, and Mary Keiner, children of Mrs. Wetmore by a former marriage. The family came from Pennsylvania in 1890. In June, 1895, E. B. Eldred, about 77 years of age, and an old friend or acquaintance of A. P. Wetmore in Pennsylvania, came to Fauquier county looking for a farm. He made his temporary sojourn with the Wetmores, and on the 28th day of June, 1895, he made a visit to Washington city, taking with him the girls Zellah and Lizzie, returning with them the next day to the Wetmore home. He succeeded in finding a farm to suit him in Fauquier county, known as "Spring Farm." It was conveyed to him on the 18th of July, 1895, but, having repairs to make, he did not take actual possession of it until about the 1st of August, 1895. In the meanwhile, he (as an unmarried man) conveyed to his brother John A. Eldred, an undivided half interest in this farm, and, during the repairs to the property, he and his brother John boarded with a neighbor, J. H. Edwards. On taking possession of the farm, Zellah Keiner, one of the three daughters of Mrs. Wetmore, went with him in the capacity of housekeeper, or, as Mrs. Wetmore expressed it, "to take charge of his house, and look after things for him." A child (the complainant) was born to [97 Va. 609] Zellah on the 10th of September, 1896, and E. B. Eldred died in January following.

There is not an intimation of any marriage of E. B. Eldred with Zellah Keiner, or any rumor concerning it, that does not connect it with the visit to Washington on the 28th of June, 1895. No one suggests any marriage in Virginia, and Mrs. Wetmore says that Zellah was never out of Virginia from the time E. B. Eldred came to Virginia until his death, except on the occasion when she and her sister went with him to Washington.

No witness is produced who professes to have any knowledge of a marriage between these parties. No certificate of marriage is produced, and therefore the declarations of E. B. Eldred and the conduct of the parties are alone relied on to raise the presumption of their marriage.

Marriage may, doubtless, be proved, in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties; but, where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular, opinion; and where reputation in such case is divided it amounts to no evidence at all. And so with respect to the declarations of the parties. The value of such declarations as evidence will always depend upon the circumstances under which they were made. This is the rule as laid down by Lord Eldon and Lord Redesdale in Cunningham v. Cunningham, 2 Dowl. 482.

If parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and especially if they 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. Barnum v. Barnum, 42 Md. 251; Redgrave v. Redgrave, 38 Md. 93; Cunningham v. Cunningham, supra; and Womack v. Tankersley, 78 Va. 242. But cohabitation and repute do not constitute marriage. They are only evidence tending [97 Va. 610] to raise a presumption of marriage, and, like any other presumption of fact, may be overcome by countervailing evidence. White v. White, 7 L. R. Ann. 801 (82 Cal. 427); Cartwright v. McGown, 121 Ill. 388;

Page 479

Waddingham v. Waddingham, 21 Mo.App. 609; Barnum v. Barnum, supra; and Com. v. Stump, 53 Pa. 132.

The declarations of parties, and other attendant circumstances of cohabitation, all of which are admissible, as part of the res gestae, to show a virtuous intercourse between man and woman, must, together with the repute originating in consequence, be contemporaneous with that intercourse and not subsequent. With respect to the declarations of parties themselves, their value depends chiefly upon the circumstances under which they were made; and reputation, favorable or unfavorable, is founded on general, and not singular, opinions -- being the social verdict upon the pair, as one may say, and a verdict society rarely fails to give from its means of knowledge. Where reputation is found divided, or the cohabitation is partial or irregular, the virtue of the cohabitation is discredited at once, and the presumption of marriage fails unless strengthened by other means. Schouler on H. & W., p. 63, and authorities cited.

In all such cases the rule of evidence is the same in civil as in criminal proceedings, and the decision must be on the weight of the evidence. Womack v. Tankersley, supra.

As we have already observed, appellee relies upon the declarations of E. B. Eldred that he and the mother of appellee had been married, and the evidence of these declarations connects them with the trip to Washington June 28, 1895, and no witness testifies to any declarations of E. B. Eldred that Zellah Keiner was his wife made prior to May, 1896, when her pregnancy had become known. We have, therefore, only to determine whether or not any marriage took place on the Washington trip, as there is not the slightest evidence of any declaration of E. B. Eldred of any sort of a marriage at any other time or place.

[97 Va. 611] The law in the District of Columbia is positive in its requirements of a license to marry. After providing for the granting of license, sec. 6 of the statute, provides that "no person within this District shall marry without such license," &c., &c., or before the names of the parties intending to marry shall be thrice published in some parish, church, or chapel, meeting-house, Romish chapel, or other house of religious worship, in the county where the woman shall have her usual residence, on three several Sundays by some minister residing in the same county where the woman to be married usually lives, under the penalty of £ 500, current money, and a like penalty is imposed on any minister marrying parties without such license and publication as the act requires.

That no license was issued for the marriage of these parties in Washington city is proved by the clerk of the court having official charge of such matters, and the publication required by the statute in lieu of license was impossible. Lizzie Keiner, one of the party who went on the trip to Washington, has not been called to testify, although it would seem, that a marriage on that trip could not have taken place without her knowledge, and her silence is unexplained, notwithstanding her sister's character is involved in this controversy.

The other sister, Mary, testifies that on the return from Washington, the parties occupied separate rooms, and nothing was heard of a marriage; that she visited her sister at "Spring Farm" in the summer of 1895, the winter of 1895-'6, and stayed with her most of the summer of 1896, and also visited her frequently at other times, yet she admits that she never heard of this marriage till told of it by E. B. Eldred in May, 1896, ten months after the Washington trip. Although she had frequently visited her sister at "Spring Farm," staying at the house a great deal during the year 1895 and the early part of 1896, the witness does not testify that E. B. Eldred and Zellah Keiner occupied the same room, or conducted themselves towards each other...

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