Commonwealth v. Stump

• Decision Date: 17 October 1866
• Citation: 53 Pa. 132
• Parties: Commonwealth <I>versus</I> Stump.
• Court: Pennsylvania Supreme Court

Page 132

53 Pa. 132

Commonwealth versus Stump.

Supreme Court of Pennsylvania.

October 17, 1866.

APPEAL from the decree of the Register's Court of Allegheny county, in the matter of the assessment of collateral inheritance tax on the estate of Abraham Stump, deceased. Stump, the deceased, then an unmarried man, about the year 1833, employed Jane Pearson as his housekeeper. About a year afterwards she had a child of whom Stump was the acknowledged father, and who lived but about a year. Stump and his housekeeper occupied separate chambers from the time she came to live with him until about a year after the death of the child, when they commenced occupying the same chamber, and shortly afterwards a son, George H. Stump, was born; about fourteen months after, another son, Abraham H. Stump, was born. Some time after the birth of these children Abraham Stump and Jane Pearson were married, they having continued to occupy the same chamber in the same manner as had been done. He died in May 1853. There was evidence that they cohabited together as man and wife; that they rode together to the funeral of their first child; that he frequently referred persons who came to buy articles of provisions, to her; that she sold such articles at home and at the store; that he sometimes called her the "old woman;" that they roomed together when away from home, and that he recognised the two sons as his. There was no evidence that they were reputed man and wife, except her statement in an ex parte affidavit, which was read on the trial by agreement. All other witnesses on this point testified that the reputation was that they were not married.

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L. S. Clark, for Commonwealth, plaintiff in error.—Reputation and cohabitation are sufficient evidence of marriage in Pennsylvania: Senser v. Bower, 1 Penna. R. 452; Covert v. Hertzog, 4 Barr 145; Thorndell v. Morrison, 1 Casey 326. Cohabitation alone is not sufficient. Proof of circumstances is presumptive, but may be rebutted: Physick's Estate, 4 Am. Law Reg. 423; 2 Greenl. on Ev. §§ 462, 464. The reputation must be general: Cunningham v. Cunningham, 2 Dow's P. C. 514.

The evidence rejected was offered to prove the marriage, which was direct proof: Hill v. Hill, 8 Casey 511; Kenyon v. Ashbridge, 11 Id. 157; Physick's Estate, supra.

T. B. Kennedy and J. McD. Sharpe, for defendants in error. —Marriage is a civil contract, which may be completed by any words in the present tense, without regard to form: 2 Kent's Com. 86; Hantz v. Sealy, 6 Binn. 405; and may be proved like other contracts: Senser v. Bower, 1 Penna. R. 452; Thorndell v. Morrison, 1 Casey 326; Covert v. Hertzog, 4 Barr 145; Physick's Estate, supra. Declarations of the parties are of equal force with reputation: Hill v. Hill's Administrator, 8 Casey 511; Kenyon v. Ashbridge, 11 Id. 157; Guardians of the Poor v. Nathans, 5 Penna. Law Journ. 1; Hanna v. Phillips, 1 Grant 253; Physick's Estate, 4 Am. Law Reg. 423; Wilkinson v. Payne, 4 Term R. 468; In re Taylor, 9 Paige 611.

The opinion of the court was delivered, October 17th 1866, by WOODWARD, C. J.

In 1865 the register of Franklin county caused an appraisement to be made of the real and personal estate which the above defendants held under a devise from their father, and assessed it with a tax of $1262.50 under the Collateral Inheritance Tax Law, on the ground that the devisees were illegitimate sons of their father when the devise took effect. On appeal to the Register's Court an issue was framed to try the legitimacy of the devisees, or, in other words, to try the question of fact, whether the parents were married before the boys were born. This was a question for the jury, but it is complained of that the court instructed the jury, on the authority of Thorndell v. Morrison, 1 Casey 326, that cohabitation of the parents was, alone, sufficient to establish their marriage. It appears from the charge that the learned judge did very distinctly negative the plaintiff's point, that proof of cohabitation and reputation was necessary to ground a presumption of marriage, and did lay down the law, on the authority of the above case, that continued cohabitation for twenty years, without proof of reputation, was sufficient evidence of the marriage.

Herein we think there was manifest error. The doctrine of Thorndell v. Morrison, interpreted, as all reported judgments ought to be, by the facts of the case, is that reputation and cohabitation are sufficient evidence of marriage for civil purposes, and this doctrine is consistent with our antecedent cases. This was the proposition which the court decided in that case, and if incautious language fell from the judge appointed to express the opinion of the court, it should be received with the limitation imposed by the facts. Unless this rule be observed in interpreting and applying our decisions, injustice will be done to us, and the law will rapidly fall into confusion. Reading that decision in the light of this rule, it does not sustain the instructions given to the jury in this case, but it should have led the learned judge to an affirmance of the plaintiff's points. Nor was the error harmless. Had there been evidence of reputation as well as of cohabitation, it might have been presumed that the jury based their verdict upon it notwithstanding the mistake of the judge, but there was no such evidence except by the mother, and she was successfully contradicted on this point. Whether there was a marriage or not would be a fact peculiarly within her knowledge, but whether there was a reputation of marriage was a fact to be proved by neighbors and acquaintances rather than by her. A reputation that was known only to her would be no reputation at all. Reputation consists of the speech of the people who have an opportunity to know the parties, and when the people all deny knowledge of such reputation, and allege, as several witnesses did, that the reputation was that the parties were not married, it signifies nothing that the woman permitted herself to swear that she and Stump were "known and reputed...