Hantz v. Sealy

• Decision Date: 23 May 1814
• Citation: 6 Binn. 405
• Parties: HANTZ administrator cum test. annex. of SEALY v. SEALY.
• Court: Pennsylvania Supreme Court

6 Binn. 405

HANTZ administrator cum test. annex. of SEALY v. SEALY.

Supreme Court of Pennsylvania.

May 23, 1814

IN ERROR.

Marriage is a civil contract, which may be completed by any words in the present time without regard to form: but if a man says to a woman, " I take you for my wife," and the woman answers, " to be sure he is my husband, good enough," referring to a past illegal marriage and cohabitation, this is no marriage.

An executor is not liable to an action for a legacy while the probate of the will is suspended by appeal; nor will an action commenced during that period, acquire validity by the subsequent confirmation of the will.

In an action of debt or on the case against an executor for a debt due from the testator, the plea of non est factum or non assumpsit is an admission of a will of which the defendant is executor: secus, where the action is for a demand on which the testator was not liable, as for a legacy.

THIS was an action of assumpsit in the Common Pleas of York county, brought to August Term 1807 by Mary Sealy the plaintiff below, to recover the amount of the personal estate of Henry Sealy her late husband, bequeathed to her by his will. The Narr contained also a count for money had and received. The defendant pleaded; 1. Non assumpsit; 2. Payment; 3. That the plaintiff was his wife.

Upon the trial of the cause, the plaintiff's counsel, in support of the first issue, offered in evidence the will of Henry Sealy dated the 21st of March 1798, and certified by the Register of York county to have been duly proved by the oaths of the subscribing witnesses, on the 12th of April 1798. To this the defendant's counsel objected, and produced to the Court in support of their objection: 1. The record of an appeal by Henry Hull and another, made on the 25th of June 1799, to the Register's Court of York county, from all acts and decrees of the Register relative to the will in question: 2. An order of the Register's Court on the 4th of December 1799 directing an issue of devisavit vel non in the Common Pleas of York: 3. The record of the trial verdict, and judgment in favour of the will, in the Circuit Court in May 1802: and 4. The record of an appeal from that judgment to the Supreme Court, and the final confirmation of the will in May 1810, more than two years after this suit was commenced. The counsel for the plaintiff then gave in evidence that on the 12th of April 1798, letters of administration with the will annexed pendente lite were granted to Boreas Fahnestock, who settled his account in the Orphan's Court of York county on the 22d of September 1802, and obtained his discharge on paying over the balance of 4334 l. 14 s. 3 1/2 d. remaining in his hands, part in cash and part in bonds and notes & c. to the defendant Hantz, who on the 24th of September, obtained letters of administration de bonis non cum testamento annexo, and received the balance accordingly. The plaintiff's counsel also gave in evidence that Hantz was plaintiff in the feigned issue in the Circuit Court, and that on the 25th of May 1805, after the appeal by the defendants in that suit to the Supreme Court, he treated the appeal as if it had been abandoned, and issued execution for the costs, and received them. From this, and the acceptance of the administration it was inferred that Hantz was estopped from alleging that the paper in question was not the will of Sealy, or that the appeal was subsisting when this suit was commenced.

Upon the whole matter, the two assistant judges against the opinion of the President, admitted the will, and sealed a bill of exceptions.

Upon the second issue of payment, there was no evidence.

Upon the third, it was proved that a marriage took place between the plaintiff and defendant before a clergyman in the month of January 1799; that he and she had given receipts by the name of Jacob and Mary Hantz; that they cohabited as man and wife, had children, and had executed deeds for land, in which she was stiled his wife, and had acknowledged them as such. At the time of this marriage it was however perfectly clear, that the defendant had another wife living, from whom he had been separated according to his own notion effectually, but without any effect whatever in law. A legal divorce was afterwards obtained, and Hantz and Mrs Sealy having come to Mr. Watts their counsel on business, he advised them to celebrate a new marriage. Hantz then said, " I take you (the plaintiff) for my wife; " and the plaintiff being told that if she would say the same, it would be a complete marriage, she replied, % 7F‘ to be sure he is my husband good enough. " Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, and he thought they went out for that purpose; but it was never done.

The matters objected by the defendant were; 1. The marriage, which was said to be proved both by the ceremony before Mr. Watts, and by the cohabitation and acts of the parties. 2. That no express promise having been proved, the action of assumpsit would not lie upon an implied promise, until after a settlement of the administrator's account, and an order of distribution by the Orphan's Court. 3. That if a promise might be implied before, at all events it could not be until it was the defendant's duty to pay, in other words until the will was established; of course the action was premature. 4. That the greater part of the property being in bonds and notes, the plaintiff could not recover the amount of these in an action for money had and received, because she had not proved their conversion into money. 5. That no refunding bond had been filed before the suit was brought.

The President charged the jury; 1. That as to the cohabitation and acts of the parties, they did not amount to a marriage, but were facts from which a marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and might be met by circumstances, shewing that they were founded on some fact unconnected with marriage. As for instance, if the cohabitation was merely the consequence of the marriage before the clergyman, which was clearly void, and if the acknowledgments referred entirely to the fact of that marriage, then they could not be considered as referring to any other marriage, nor have any weight in proving the marriage contended for. These facts would entirely destroy the presumption of a legal marriage, that would otherwise arise from the cohabitation and acknowledgments; and the jury were to decide upon them. As to the marriage before Mr. Watts, there was no doubt that marriage in Pennsylvania was so far a civil contract, as to be governed by the municipal laws of the state, viz. the statute and common law, without the intervention of any spiritual or ecclesiastical law, as in England. There was no particular form of ceremony established by the law of Pennsylvania which was to govern in all cases: but marriage was a very important and solemn institution, and the manner in which it was to be contracted, ought to be suitable to the nature and importance of the engagement. It was not absolutely necessary to be done before a clergyman, or a magistrate; but it ought to be entered into with consideration and deliberate assent, and ought to be done formally and solemnly. The Court did not think it necessary to lay down any rule as to what form and ceremonies might be requisite to form a marriage; but they were decidedly of opinion, that the facts which occurred before Mr. Watts did not constitute a legal marriage. 2. That where assets were in the hands of an executor, the law would imply a promise before a settlement of accounts and an order of distribution. 3. That as to the effect of the will, it had already been decided by a majority of the Court, in receiving it as evidence. 4. That the jury should be satisfied that the amount claimed had been received by the defendant before the commencement of the suit; but that the jury might presume this as well as any other fact from the evidence. Direct proof was not necessary. 5. That the want of a refunding bond should have been objected on the return of process or in a plea in abatement, and that it was now too late.

To this charge an exception was taken, and all the points that were urged below, were now argued in this Court, by Montgomery and Duncan for the plaintiff in error, and by Bowie and Hopkins for the defendant in error.

TILGHMAN C. J.

In the assignment of errors, several exceptions are taken to the charge delivered by the President of the Court of Common Pleas, of which it is necessary to take notice; but the main ground of defence is, that the plaintiffs could not support an action, until the validity of the will was finally decided.

The defendant pleaded that he was married to the plaintiff, on which issue was joined, and it was objected that the judge ought to have directed the jury that the evidence proved the marriage. The judge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time without regard to form. He told them also, that in his opinion the words proved did not constitute a marriage, and in this I agree with him. The plaintiff and defendant came to their lawyer Mr Watts on business, without any intention of marrying. They had long lived in an adulterous intercourse, although they considered themselves as lawfully married. In fact they had entered into a marriage contract which was void, because the defendant had a former wife living, from whom he had been separated by consent but not legally. Some time before the parties came to Mr. Watts, a legal divorce had been pronounced, and Mr. Watts advised them to celebrate a new marriage. The...