Richard v. Brehm

• Decision Date: 17 May 1873
• Citation: 73 Pa. 140
• Parties: Richard <I>versus</I> Brehm.
• Court: Pennsylvania Supreme Court

73 Pa. 140

Richard versus Brehm.

Supreme Court of Pennsylvania.

February 3, 1873.

May 17, 1873.

February 3d 1873.

Before READ, C. J., SHARSWOOD, WILLIAMS and MERCUR, JJ. AGNEW, J., at Nisi Prius

Certificate from Nisi Prius: No. 234, to July Term 1870.

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D. W. Sellers, for plaintiff in error.—The concurrent publication of the will of the defendant as husband, and of Mary Richard as wife, was a celebration and proclamation of the marriage: Vincent's Appeal, 10 P. F. Smith 228. Taking each other as man and wife, with cohabitation and reputation, constituted a marriage: Com. v. Stump, 3 P. F. Smith 132; Physick's Estate, 2 Brewster 179; Vincent's Appeal, 10 P. F. Smith 228; Omohundro's Estate, 16 Id. 113.

W. L. Hirst, for defendant in error.

The opinion of the court was delivered, May 17th 1873, by MERCUR, J.

This was an action of ejectment in which the plaintiff brought suit to recover as the devisee of Mary E. Richard. Defence was made principally upon the ground that the defendant was the surviving husband of said Mary. That fact was denied and presented the controlling question in the case.

Marriage is a civil contract jure gentium, to the validity of which the consent of parties, able to contract, is all that is required by natural or public law. If the contract is made per verba de præsenti, though it is not consummated by cohabitation, or if it be made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary: 2 Greenl. Evid., § 460. Marriage is a civil contract which may be completed by any words in the present time, without regard to form: Hantz v. Sealy, 6 Binn. 405. The fact of marriage then may be proved and established by competent and satisfactory evidence.

What kind of evidence is held to be satisfactory? Marriage may be proved in civil cases, by reputation, declarations, and conduct of the parties, and other circumstances usually accompanying that relation: 2 Greenleaf's Evid. § 462. For civil purposes reputation and cohabitation are sufficient evidence of marriage: Senser et al. v. Bower et ux., 1 Penna. Rep. 450. In all civil cases involving merely the right of property the fact of marriage may be proved by long-continued cohabitation as man and wife: Thorndell v. Morrison, 1 Casey 326. Both cohabitation and reputation are necessary to establish a presumption of marriage, where there is no proof of actual marriage; Commonwealth v. Stump, 3 P. F. Smith 132. Marriage is in law a civil contract, not requiring any particular form of solemnization before officers of church or state: Idem. Unequivocal and frequent admissions of marriage, accompanied by long-continued cohabitation and reputation, are frequently most satisfactory evidence of marriage: Vincent's Appeal, 10 P. F. Smith 228.

Ought the evidence in this case to have been submitted to the jury to find whether the marriage relation existed between John H. Richard and Mary E. Richard? It shows that from about the year 1832 down to the time of her death in 1870, they lived and cohabited together as man and wife. They recognised and addressed each other as husband and as wife. She called him her husband he called her his wife. During all that time she bore his name. The three several deeds given in evidence by the plaintiff below, bearing date in 1856 and 1857, show that the land was conveyed to her as the wife of John H. Richard. Upon the 27th of March 1858, she duly executed, in the presence of three witnesses, a last will and testament, in which she describes herself as "wife of John H. Richard." She therein gives all the residue and remainder of her estate "unto my said husband, John H. Richard, his...