Adger v. Ackerman

• Decision Date: 14 April 1902
• Docket Number: 1,632.
• Citation: 115 F. 124
• Parties: ADGER et al. v. ACKERMAN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F. 124

ADGER et al. v. ACKERMAN et al.

No. 1,632.

United States Court of Appeals, Eighth Circuit.

April 14, 1902

Syllabus by the Court.

Marriage is a civil contract. An agreement of one woman and one man competent to contract, to then become and thereafter be husband and wife during their joint lives, is a valid marriage contract, and no ceremony, civil or religious, is necessary.

An implied contract of marriage is as binding and effective as one expressed by written or spoken words.

A marriage may be implied or inferred from cohabitation general reputation among acquaintances of the parties, their treatment of each other, and their speaking of and addressing each other as husband and wife, the christening of their offspring as their children, the bestowing of the name of the father upon a child of the union, and other acts, sayings and conduct which have a natural tendency to show the existence of the marriage relation.

There is a strong legal presumption that a child is the fruit of a lawful, rather than of a meretricious, union, and that there was a timely marriage between the father and the mother before the birth.

A subsequent ceremonial marriage is not inconsistent with a prior common-law marriage, and does not necessarily overcome the presumption thereof arising from matrimonial cohabitation, repute, the declarations and acts of the parties.

A relation, illicit in its inception, is presumed to continue in the absence of countervailing evidence. But slight circumstances may be sufficient to establish a change from concubinage to matrimony, and evidence of the time or place of the change is not indispensable to its proof.

Where parties incompetent to marry enter an illicit relation with a manifest desire to live in a matrimonial union rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of a marriage immediately after the obstacle is removed, and will warrant a finding to that effect.

Nothing may impugn the legitimacy of the issue of a lawful marriage less than proof of facts which show it to have been impossible that the husband could have been the father.

While A. was the husband of one woman he established an illicit relation, in 1889, with B., another woman, and from that time they cohabited and treated each other as husband and wife. They declared themselves to be such, and their general reputation among their joint acquaintances was that of married persons. In November, 1890, A.'s wife procured a divorce and $25,000 alimony from him without any objection on his part. On September 2, 1892, B. bore him a son. On October 4, 1892, a ceremony of marriage between them was conducted. A. always recognized and treated the boy as his child. From the inception of their relation they manifested a desire and intention for a matrimonial, rather than a meretricious, union. Held, there was a common-law marriage between A. and B. immediately after the divorce.

Alfred W. Fleming died intestate in the state of Missouri on January 10, 1898, leaving a widow, Mary Cecilia Fleming, nee Quan, and her son Alfred W. Fleming, Jr., who had been born on September 2, 1892. While the deceased was not a practicing physician, he was commonly known as Dr. Fleming, and in this statement, and in the opinion which follows it, he will be designated in this way to distinguish him from his son, who bears the same name. On November 12, 1899, the widow Fleming died, leaving a will by which she bequeathed $1 to her son, and the remainder of her share of her deceased husband's estate to her father, Mathew Quan, who was subsequently appointed executor of her estate and curator of the estate of her son. In February, 1900, Quan filed a motion in the probate court for a distribution to him as such executor and curator of $50,000 of the estate of Dr. Fleming. Thereupon a brother, a sister, the heirs of a deceased sister, and some of the heirs of a deceased brother of Dr. Fleming exhibited their bill in the United States circuit court against Thomas F. Ackerman, the public administrator, Mathew Quan, and Alfred W. Fleming, in which they alleged that Dr. Fleming died without leaving any child or other descendant, and that they were his heirs, and in which they prayed that the public administrator might be enjoined from distributing the personal estate of the deceased to Mathew Quan as executor and curator, and that he might be directed to pay over to them their just shares thereof. The defendants Quan and Fleming answered that the latter was the only child of Dr. Fleming and Mary C. Fleming, his wife; that he was born on September 2, 1892; that between December 1, 1890, and October 1, 1891, Dr. Fleming and Mary C. Fleming contracted a common-law marriage; that from that time until his death they cohabited and lived together as husband and wife, and were reputed so to be; and that after the birth of Alfred W. Fleming a formal marriage ceremony was conducted between them. The usual replications were filed, testimony was taken, there was a final hearing on the merits, and the court dismissed the bill. From that decree the complainants have appealed.

John F. Lee and Robert F. Walker, for appellants.

Daniel Dillon, Joseph S. Laurie, and Thomas J. Rowe, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

This case presents a single issue: Is the defendant Alfred W. Fleming the legitimate son of Dr. Alfred W. Fleming, deceased? There are, however, two other questions, the answers to which may go far toward the determination of this issue. They are: Was there a common-law marriage between Dr. Fleming and Mary C. Quan prior to November, 1891? And, if not, did the ceremony of marriage between them subsequent to the birth of the son raise a conclusive presumption of the legitimacy of the boy, under section 2917 of the Revised Statutes of

Missouri? Marriage is a civil contract. It is the agreement of one man and one woman, competent to contract, to then become and thereafter to be husband and wife as long as they both shall live. It differs from ordinary civil contracts in the fact that it may not be revoked or dissolved by the mutual consent or act of the parties. Like other agreements, however, it may be without ceremonies, civil or religious, and it may be either express or implied. It may consist of a formal written instrument signed by the parties or of an express parol agreement between them. But neither documents nor spoken words are indispensable to its existence. An implied contract of marriage is as binding and effective as one expressed in words or spread upon parchment, and such a contract comes into being whenever the minds of the parties meet in a common understanding of and consent to the present and future existence of the relation of husband and wife between them.

In cases like that in hand, which involve the legitimacy of children, the legal presumptions are strong and the competent indicia are many from which such a marriage may be inferred. In criminal prosecutions for bigamy, incest, and adultery, and in civil actions for criminal conversation, strict proof of marriage is required. It is not so in suits involving the legitimacy of offspring. In such actions the legal presumption is that every child is the fruit of a lawful, rather than a meretricious, union, and that there had been a timely and legal marriage between the father and mother before the birth of the child. Orthwein v. Thomas, 127 Ill. 554, 562, 563, 21 N.E. 430, 4 L.R.A. 436, 11 Am.St.Rep. 159. Every intendment is indulged in favor of legitimacy, and it is one of the strongest presumptions of the law,-- a presumption not to be overcome by a mere preponderance of testimony or of probabilities,-- that a timely marriage preceded cohabitation apparently matrimonial. Piers v. Piers, 2 H.L.Cas. 331; Hynes v. McDermott, 91 N.Y. 451, 458, 43 Am.Rep. 677; Teter v. Teter, 101 Ind. 129, 133, 51 Am.Rep. 742.

This dominant presumption may be strengthened by resort to the acts and conduct of the parties; by proof of cohabitation and general reputation among their acquaintances and friends (Boatman v. Curry, 25 Mo. 433, 438; Inhabitants of Newburyport v. Inhabitants of Boothboy, 9 Mass. 414, 415; Badger v. Badger 88 N.Y. 547, 552, 42 Am.Rep. 263); of their treatment of each other; of their speaking concerning and addressing each other in the presence of third parties as husband and wife (Maryland v. Baldwin, 112 U.S. 490, 498, 5 Sup.Ct. 278, 28 L.Ed. 822); of the christening of the offspring of their union as their children (Hervey v. Hervey, 2 Wm.Bl. 877; State v. Worthingham, 23 Minn. 528, 536); of the conferring of the name of the father upon the son (Caujolle v. Ferrie, 23 N.Y. 90, 102); of the son's recognition and treatment by both parties as their child (Patterson v. Gaines, 6 How. 550, 589, 12 L.Ed. 553; Starr v. Peck, 1 Hill, 270, 272); and by proof of any and all acts, words, and conduct which have a natural and rational tendency to show the existence of the marriage relation.

These rules and principles of law are indisputable, and must serve as our guide in the consideration and determination of the questions presented for discussion. In the light of them, let us now turn to the evidence, and ascertain, if possible, whether or not there was a timely common-law marriage between Dr. Fleming and Mary Quan prior to the birth of her son. Dr. Alfred W. Fleming was born on August 19, 1828. He was married to Ann Foster, a widow, about the year 1871, and was divorced from her on November 21, 1890. He was a man of considerable wealth, and the owner of a comfortable and well-furnished house and...