Hebblethwaite v. Hepworth

• Decision Date: 31 March 1881
• Citation: 98 Ill. 126,1880 WL 14073
• Parties: MARY HEBBLETHWAITE et al.v.MARY HEPWORTH.
• Court: Illinois Supreme Court

98 Ill. 126

1880 WL 14073 (Ill.)

MARY HEBBLETHWAITE et al.

v.MARY HEPWORTH.

Supreme Court of Illinois.

Filed at Ottawa Sept. 25, 1880.Rehearing denied March Term, 1881.

APPEAL from the Circuit Court of Cook county; the Hon. MURRAY F. TULEY, Judge, presiding.

Mr. H. B. HURD, for the appellants:

The prime requisite of a valid marriage under our law is the interchange between the parties of a mutual present consent to take each other as husband and wife. For this consent there is no substitute or equivalent. Port v. Port, 70 Ill. 484; Clayton v. Wardell, 4 Comstock, 230; Lord CAMPBELL in Queen v. Millis, 10 Clark & Finnelley, 749; Williams v. Williams, 46 Wis. 464. The modes of proving the existence of such consent are various, but they should never be confounded with the consent itself, which is always the same. Shedden v. Patrick, L. R. (1 H. L. Pr. & Div.) 540, 541.

Proof of cohabitation as husband and wife does not constitute marriage. It may in some cases be evidence of marriage, but can never be anything more; “““ consensus non concubitus facit nuptias” is the universally received maxim. Port v. Port, 70 Ill. 484; Shedden v. Patrick, ubi supra; Letters v. Cody, 10 Cal. 583; Jackson v. Winne, 7 Wend. 47; Cheney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181.

If the agreement is not one of present consent to accept each other as husband and wife, but is per verba de futuro, looking to a marriage at some future time, it not only fails to prove actual marriage, but by its very terms excludes any such conclusion. Lord COTTENHAM in Stewart v. Menzies, 2 Rol. App. Cases, 547, 590; Cheney v. Arnold, 15 N. Y. 345; Foster v. Hawley, 15 Hun, (N. Y.) 68; Rundle v. Pegram, 49 Miss. 751; Floyd v. Calvert, 53 Miss. 37.

Divided reputation is not sufficient proof of marriage. The repute should be open and general, and prevail among the friends and relatives of both parties. Floyd v. Calvert, 53 Miss. 37; Yardley's Estate,75 Penn. St. 207; Clayton v. Wardell, 4 Comstock, 230; Bicking's Appeal, 2 Brewster, 202.

If cohabitation is illicit in its origin, there is a necessary presumption that the connection continues meretricious, unless there is some evidence that the character of the relation has been changed. Williams v. Williams, 46 Wis. 464; Cunningham v. Cunningham, 2 Dow, 483; Stewart v. Robertson, Law Rep. 2 Sc. Ap. 494, S. C.; Yardley's Estate,75 Penn. St. 207; Commonwealth v. Stump, 53 Id. 132; Bicking's Appeal, 2 Brewst. (Pa.) 202; Wright v. Wright, 48 How. Pr. (N. Y.) 1; Barnum v. Barnum, 42 Md. 257; Redgrave v. Redgrave, 38 Id. 93; Jackson v. Claw, 18 Johns. 346; 2 Greenleaf on Evidence, § 464; 2 Kent's Commentaries, 87; Port v. Port, 70 Ill. 484; Jones v. Jones, 45 Md. 144; Floyd v. Calvert, 53 Miss. 37; Rundle v. Pegram, 49 Id. 751.

When the cohabitation is illicit in its origin, the circumstances in favor of marriage must be such as to exclude the inference or presumption that the former relation continued. Fisher v. Hawley, 8 Hun, (N. Y.) 65, 72; Williams v. Williams, 46 Wis. 464.

Mr. JAMES S. MURRAY, for the appellee:

Marriage may be proved by reputation, declaration and conduct of the parties. 2 Greenleaf on Evidence, § 462; Bishop's Marriage and Divorce, §§ 434, 438, 439; Myatt v. Myatt, 40 Ill. 474; Port v. Port, 70 Id. 484; Miller et al. v. White, 80 Id. 580.

Every intendment of law is in favor of marriage. Bishop on Marriage and Divorce, § 459; Piers v. Piers, 2 H. L. Cases, 321; Campbell v. Campbell, 1 Law Rep. Scotch and Divorce Appeals; Hervey v. Hervey, 2 W. Blackstone, 877; King v. Twining, 2 Barn. & Ald. 386; Fenton v. Reid, 4 Johns. 52; Jackson v. Claw, 18 Id. 346; Starr et al. v. Peck, 1 Hill, 270; In re Taylor, 9 Paige, 610; Caujolle v. Ferrie, 23 N. Y. 91; Tumalty v. Tumalty, 3 Bradford, 369; Town of Greensborough v. Underhill, 12 Vt. 604; Carroll v. Carroll, 20 Texas, 731; Hutchins v. Kimmell, 31 Mich. 130; State v. Worthingham, 31 Minn. 539; Hyde v. Hyde, 3 Bradford (N. Y.) 509; Grotgen v. Grotgen, 3 Id. 373; Yates v. Houston, 3 Texas, 433; Kelly v. Drew, 12 Allen, 110; Hull v. Rawls, 27 Miss. 471; Spears v. Benton, 31 Id. 547; Chapman v. Cooper, 5 Rich. (S. C.) 452; Nathan's case, 2 Brewster (Pa.) 149; Purcell v. Purcell, 4 Hen. & M. 507.

Verbal admissions, purporting to have been made after a controversy has arisen, are entitled to little weight. In re Taylor, 9 Paige, 610; Nathan's case, 2 Brewster (Pa.) 149; 1 Greenleaf on Evidence, sec. 200. The presumption of innocence overcomes the presumption of life, even where the absence falls short of seven years. Bishop on Marriage and Divorce, sec. 452; Rex v. Twining, 2 Barn. & Ald. 386; Jackson v. Claw, 18 Johnson, 346; Gates v. Houston, 3 Texas, 433; Kelly v. Drew, 12 Allen, 110; Hull, Admr. v. Rawls, 27 Miss. 471; Spears v. Burton, 31 Id. 547; Chapman v. Cooper, 5 Richardson (S. C.) 452; Town of Greensborough v. Underhill, 12 Vt. 604; Carroll v. Carroll, 20 Texas, 731.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The eventful and sad history of complainant has induced a most careful consideration of the entire record in this case. Equitable considerations would seem to demand an affirmance of the decree of the circuit court, if any tenable ground could be discovered on which to base such a decision. The bill is for partition and dower in the lands alleged to belong to the estate of Henry Hepworth, deceased, and was brought by Mary Hepworth, claiming to be his widow. The decedent left no child or descendants of any child. Defendants are his collateral heirs. No question is made, if complainant is the widow of the intestate, she would be entitled to one-half of the real estate of which the intestate died seized, and dower in the other half. Most important of all questions made on the record is, whether complainant was the wife of the intestate, as she alleges she was, and to that inquiry we will direct our investigation. All the parties were English people, and, before coming to America, resided in Leeds, England. Decedent, Henry Hepworth, had a wife, with whom he resided up to the time he left England to come to this country, and complainant had been and was a married woman before leaving England. Her husband had, however, been transported, under judicial sentence, for ““poaching,” for a period of fourteen years. A party, consisting of the intestate, complainant and a married daughter of complainant and her husband, and, perhaps, one child, came on the same vessel to New York. On their arrival, the daughter testifies, decedent and complainant went out to get married, and, on their return, declared that they were married. Immediately thereafter they all started West. That was in 1847. Soon after their arrival in Chicago, decedent secured a farm near the village of Evanston, in Cook county, where he and complainant resided together as husband and wife until 1856. It was in that year a Mrs. Marshall, a foster daughter of decedent, came to visit them. It was not long afterwards until the true relations of the parties became known to the public, and decedent was arrested on complaint for living in an open state of adultery with complainant. The prosecution does not seem to have been pressed. Some settlement was made between the parties, and decedent paid complainant $300. The agreement between them was evidenced by writing and signed by complainant, in which the payment of the money was acknowledged, and also the justness of the accusation against them. It was distinctly stated they were not husband and wife, and the fact of the former marriage of both parties was also stated. After the settlement they lived apart, as was the agreement. Complainant went out to service for a brief period in Chicago, but soon returned to Evanston, where she secured a home of her own, and maintained herself and grandson, who resided with her, by her own labor.

While complainant and decedent lived on the farm together, she did such work as farmers' wives usually do, and, in addition thereto, she often worked in the field. By their united labor and the exercise of economy, Hepworth acquired a considerable property, aggregating many thousand dollars. It is shown complainant is an uneducated woman, being unable either to read or write, but she was always kindly regarded by all her neighbors with whom she was acquainted. She was a member of one of the principal Methodist churches of the village of Evanston, and during her long residence in the midst of that people, nothing was ever alleged against her character, barring her relations with the intestate. She is now nearly or quite eighty years old, broken in health and dependent on public charity for support.

Evidence introduced shows, that in 1864 Hepworth obtained a divorce from his wife, then residing in England. The divorce was obtained in one of the courts of Cook county, but the record was destroyed in 1871, by the fire that destroyed all the public records of that county. It is sufficiently proved, however, that the divorce, for some cause not disclosed, was, in fact, granted. It is made to appear, that from the time of their separation in 1856, until 1866, the parties lived separate and apart. During that period complainant supported herself, as well as she could, by her own labor and with the assistance of such aid as the public authorities of the town kindly bestowed on her.

In 1865, Hepworth came to the house of complainant, after she had retired for the night, and, on obtaining admission, he made a proposition to live with her again. She distinctly informed him, at that time, she would not consent to his proposition unless he would marry her, and one reason she assigned was, that unless he did it would injure her with the neighbors, who had been very kind to her. He assured her that he would, and that he had never before been in a condition when he could lawfully marry her. He continued to visit her frequently at her house, but always returned every night to his own...