Eldred v. Eldred

• Decision Date: 16 November 1899
• Citation: 34 S.E. 477,97 Va. 606
• Parties: ELDRED et al. v. ELDRED.
• Court: Virginia Supreme Court

34 S.E. 477

97 Va. 606

ELDRED et al.

v.ELDRED.

Supreme Court of Appeals of Virginia.

Nov. 16, 1899.

MARRIAGE — EVIDENCE — REPUTATION — COHABITATION—DECLARATIONS OF PARTIES—PRESUMPTIONS.

1. Reputation, to prove a marriage, must be founded on general, not divided or singular, opinion; and, if reputation is divided, it is no evidence at all.

2. The value of a party's declarations to prove his marriage depends on the circumstances under which they were made.

3. If persons live together ostensibly as man and wife, and are received in society as such, the law will, in favor of morality and decency, presume that they have been legally married; but cohabitation and repute alone do not constitute marriage, but are only evidence raising a presumption thereof, which may be overcome like other presumptions of fact.

4. Declarations of the parties and attendant circumstances to show marriage must, together with the repute originating in consequence thereof, be contemporaneous with, and not subsequent to, cohabitation.

5. Where reputation of a marriage is divided, or the cohabitation partial or irregular, the virtue of the cohabitation is discredited, and the presumption of marriage resulting therefrom fails, unless otherwise strengthened.

6. On an issue as to the existence of a marriage, the rule of evidence is the same in civil as in criminal proceedings, and the decision must be on the weight of the evidence.

7. Where the cohabitation of the parties is not shown to have been matrimonial, and justified by contemporaneous behavior sufficient to give the reputation of marriage, it is neither sufficient to prove marriage, nor raise a presumption thereof.

8. Where one undertakes to prove that cohabiiting parties were married at a certain time and place, and the evidence is insufficient to establish that fact, he cannot rely on other facts and circumstances as the ground of a presumption that a marriage took place elsewhere at anothertime, the presumption in such case being that the connection continued to be illicit, until it is overcome by distinct proof of a marriage.

Appeal from circuit court, Fauquier county.

Bill by E. A. Eldred, by next friend, against John A. Eldred and others. There was a decree in favor of complainant, and defendants appeal. Reversed.

C. M. White, and John A. C. Keith, for appellants.

A. W. Armstrong and Eppa Hun-ton, Jr., for appellee.

CARDWELL, J. E. A. Eldred, an infant, by his next friend, instituted a suit in the circuit court of Fauquier county in which he alleged that E. B. Eldred died seised and possessed of an undivided moiety of certain real estate in the county of Fauquier, the other moiety thereof being owned by John A. Eldred; that E. B. Eldred died intestate, leaving surviving him a widow, Zellah K. Eldred, and the complainant, his only child and heir at law; that the brothers and sisters of E. B. Eldred denied that the complainant and the said widow were entitled to any share of the estate of E. B. Eldred. And the prayer of the bill is that Zellah K. Eldred, and the parties who would have been the heirs at law of E. B. Eldred, but for the existence of the widow and complainant, be made parties defendant thereto; that the rights of the widow and complainant be determined; and that the real estate owned jointly by E. B. Eldred and John A. Eldred be partitioned between John A. Eldred and the complainant.

To this bill all of the defendants filed an answer, except Zellah K. Eldred (so called), in which, while not denying that the complainant is the natural son of E. B. Eldred, they deny that he left any child, the offspring of a lawful marriage. Depositions were taken, and exhibits filed; and upon the hearing of the cause the judge of the circuit court decreed that Zellah K. Eldred is the widow, and the complainant the lawful and sole heir, of E. B. Eldred, deceased. From this decree an appeal was obtained to this court.

The only question, therefore, is whether E. B. Eldred and Zellah L. Keiner, called in this record Zellah K. Eldred, the mother of the complainant, were ever married.

It appears that in 1895 there were residing in Fauquier county a family consisting of A. P. Wetmore, his wife, Sarah K., and three daughters, named, respectively, Zellah L., Lizzie, and Mary Keiner, children of Mrs. Wet-more by a former marriage. The family came from Pennsylvania in 1890. In June, 1895, E. B. Eldred, about 77 years of age, and an old friend or acquaintance of A. P. Wet-more in Pennsylvania, came to Fauquier county, looking for a farm. He made his temporary sojourn with the Wetmores; and on the 28th day of June, 1895, he made a visit to Washington City, taking with him the girls, Zellah and Lizzie, returning with them the next day to the Wetmore home. He succeeded in finding a farm to suit him in Fau quier county, known as "Spring Farm, " It was conveyed to him on the 18th of July, 1895, but, having repairs to make, he did not take actual possession of it until about the 1st of August, 1895. In the meantime he, as an unmarried man, conveyed to his brother John A. Eldred an undivided half interest in this farm; and during the repairs to the property he and his brother John boarded with a neighbor, J. H. Edwards. On taking possession of the farm, Zellah Keiner, one of the three daughters of Mrs. Wetmore, went with him in the capacity of housekeeper, or, as Mrs. Wetmore expressed it, "to take charge of his house and look after things for him." A child (the complainant) was born to Zellah on the 10th of September, 1896, and E. B. Eldred died in January following.

There is not an intimation of any marriage of E. B. Eldred with Zellah Keiner, or any rumor concerning it, that does not connect it with the visit to Washington on the 28th of June, 1895. No one suggests any marriage in Virginia, and Mrs. Wetmore says that Zellah was never out of Virginia, from the time E. B. Eldred came to Virginia until his death, except on the occasion when she and her sister went with him to Washington.

No witness is produced who professes to have any knowledge of a marriage between these parties. No certificate of marriage is produced, and therefore the declarations of E. B. Eldred and the conduct of the parties are alone relied on to raise the presumption of their marriage.

Marriage may doubtless be proved in civil cases, other than actions for seduction, by reputation, declarations, and conduct of the parties; but, where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular, opinion; and, where reputation in such case is divided, it amounts to no evidence at all. And so with respect to declarations of the parties. The value of such declarations as evidence will always depend upon the circumstances under which they were made. This is the rule as laid down by Lord Eldon and Lord Redesdale in Cunningham v. Cunningham, 2 Dow. 482.

If parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and especially if they are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married. Barnum v. Barnum, 42 Md. 296; Redgrave v. Redgrave, 38 Md. 97; Cunningham v. Cunningham, supra; and Womack v. Tankersley, 78 Va. 242. But cohabitation and repute do not constitute marriage. They are only evidence tending to raise a presumption of marriage, and, like any other presumption of fact, may be overcome by countervailing evidence. White v. White, 82 Cal. 427, 23 Pac. 276, 7 L R. A. 801; Cart-wright v. McGown, 121 Ill. 388, 12 N. E. 737; Waddingham y. Waddingham, 21 Mo. App. 609; Barnum v. Barnum, supra; and Com. v. Stump, 53 Pa. St. 132.

The declarations of parties and other attendant circumstances of cohabitation, all of which are admissible, as part of the res gestæ, to show a virtuous intercourse between man and woman, must, together with the repute originating in consequence, be contemporaneous with that intercourse, and not subsequent. With respect to the declarations of parties themselves, their value depends chiefly upon the circumstances under which they were made; and reputation, favorable or unfavorable, is founded on general, and not singular, opinions, —being the social verdict upon the pair, as one may say, and a verdict society rarely fails to give from its means of knowledge. Where reputation is found divided, or the cohabitation is partial or irregular, the virtue of the cohabitation is discredited at once, and the presumption of marriage fails, unless strengthened by other means. Schouler, Husb. & W. p. 63, and authorities cited.

In all such cases the rule of evidence is the same in civil as in criminal proceedings, and the decision must be on the weight of the evidence. Womack v. Tankersley, supra.

As we have already observed, appellee relies upon the declarations of E. B. Eldred that he and the mother of appellee had been married, and the evidence of these declarations connect them with the trip to Washington June 28, 1895; and no witness testifies to any declarations of E. B. Eldred that Zellah Keiner was his wife made prior to May, 1896, when her pregnancy had become known. We have, therefore, only to determine whether or not any marriage took place on the Washington trip, as there is not the slightest evidence of any declaration of E. B. Eldred of any sort of a marriage at any other time or place.

The law in the District of Columbia is positive in its requirements of a license to marry. After providing for the granting of license, section 6 of the statute provides that "no person within this District shall marry without such license, " etc., or before the names of the parties intending to marry shall be thrice published in some parish church or chapel, meeting house, Romish chapel, or other house of religious worship, in the county where the woman shall have...