Furth v. Furth
Citation | 133 S.W. 1037,97 Ark. 272 |
Parties | FURTH v. FURTH |
Decision Date | 16 January 1911 |
Court | Supreme Court of Arkansas |
Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.
STATEMENT BY THE COURT.
On the 21st day of June, 1907, Robert A. Furth died in the city of Little Rock, Arkansas, owning a large amount of real and personal property. He left a will in which he devised the bulk of his estate to his mother. Sam Blum was appointed and duly qualified as the executor of his will. The appellant claimed to be his widow, and instituted suit for dower in his real and personal estate. The executor and devisees under the will of R. A. Furth, deceased, were made parties to the action. Appellant does not claim that any marriage ceremony was ever performed between her and R. A. Furth; but she claims to be his widow under what is generally called a "common-law carriage." That is to say, she claims that in May, 1906, there was a consummated agreement in the State of Arkansas to marry between her and R. A. Furth by words in the present tense, followed by cohabitation until his death in June, 1907; and that this constitutes a valid marriage under the laws of the State of Arkansas. Appellant introduced evidence tending to establish her claim, and appellees introduced evidence tending to disprove it. The views which we shall express in the opinion render it unnecessary to abstract the evidence, or to pass upon the weight of it.
The chancellor dismissed her complaint for want of equity, and she has duly prosecuted an appeal to this court.
Decree affirmed.
Watkins & Vinson, for appellant.
A common law marriage is good in Arkansas where the common law has been adopted by statute. Kirby's Digest, § 623; 28 Ark. 21; 34 Ark. 512; 80 Ark. 485; 82 Ark. 81; 88 Ark 196.
This rule is followed in nearly all the other States. 43 Ala. 57; 117 Ala. 80; 119 Ala. 636; 94 Ala. 99; 75 Cal. 5, 18, 29; 18 Col. 158; 32 P. 68; 10 Col. App. 303; 50 P. 1049; 68 A. 1068; 68 N.J.Eq. 736; 132 Mo. 555-561; 66 Mo. 391; 132 Mo.App 555-576; 31 Miss. 211; 49 Id. 357; 53 Id 57; 36 Neb. 808; 110 N.W.935; 92 P. 490, and many others.
Rose Hemingway, Cantrell & Loughborough, for appellee.
A common law marriage is not valid in Arkansas. Our marriage acts are mandatory and must be complied with. 7 Mass. 48; 1 Yerger 177; 2 Dev. & Bat. 177; 19 Me. 155; 20 Vt. 582; 19 N.H. 257; 1 Abb. Cr. Ct. (U. S.) 525; 35 Mid. 361; 29 W.Va. 732; 4 Wash. 570; 54 P. 143. The cases of 28 Ark. 19; 82 Id. 76; 8 Id. 481; 113 S.W. 1027 do not settle the question. Rev. St. 1838; Gantt's Dig., § 4179; Kirby's Digest, § 5194; Acts 1806, 52; Acts 1881, 189; Acts 1891, 59. Ch. Kent in 4 Johns, 52 held that a contract of marriage per verba de praesenti amounted to an actual marriage. This has been followed in sixteen States. See cases collected 26 Cyc. 840-1 and 19 Am. & E. Enc. Law 1195-6-7. Eleven States have followed 7 Mass. 48 supra. The United States Supreme Court has followed the State courts in cases from those States. 1 How. 219; 96 U.S. 76; Parsons on Contracts (8 ed.), vol. 2, p. 78; Keezer on Mar. & Div., § 19.
OPINIONHART, J., (after stating the facts).
It is claimed by appellant that in May, 1906, in the State of Arkansas, she and R. A. Furth mutually agreed from that time to be husband and wife, and that pursuant to such agreement they cohabited and lived together as husband and wife until his death in June, 1907. Conceding, without deciding, that a preponderance of evidence establishes that fact, were they married under the laws of the State of Arkansas?
Because the marriage relation is the source from which arises the home and the family, we have concluded to decide this question, rather than pass upon the preponderance of the evidence in the case.
It is contended by counsel for appellant that the question is settled in her favor by the decision of this court in the case of Jones v. Jones, 28 Ark. 19. We cannot agree with them. In that case Delilah Jones claimed to be the widow of Elbert Jones under a marriage to him in Tennessee before they came to Arkansas, and that was the question decided by the court. We have recognized the question as an open one in this State in the decision of O'Neill v. Davis, 88 Ark. 196, 113 S.W. 1027; and now pass upon it as a case of first impression in this State.
In the case of Denison v. Denison, 35 Md. 361, the Supreme Court of Maryland, while recognizing that a contract of marriage per verba de praesenti constituted a valid marriage by the canon law of Europe, said:
"The civil and canon laws * * * have no operation in England, except only as they may have been incorporated into the system of the common law, and in ascertaining what was the law of England in regard to the mode and manner of contracting marriage prior to or independently of the marriage act of 26 George II, passed in 1753, we do not appeal to the civil or canon law as such, but to the common law as a system peculiar to England and her institutions."
After reviewing the authorities, the court continued as follows: The court concluded the discussion by saying:
Even if it can be said that a present contract of marriage between a man and a woman, followed by cohabitation, is valid under the common law, we hold that the common law in this respect has never obtained in this State, and follow the ruling of Morrill v. Palmer, 68 Vt. 1, 33 A. 829, and Milford v. Worcester, 7 Mass. 48. See also Commonwealth v. Munson, 127 Mass. 459, 34 Am. Rep. 413, in this respect.
It is true that in 1816, while Arkansas was a part of the Missouri Territory, a statute was enacted adopting the common law of England and the general acts of the British parliament up to the fourth year of James the first (March 24, 1607), as a part of its system of laws; and that this statute remained when Arkansas was formed into a territory; and with some change of phraseology was re-enacted as a part of the laws of the State. Kirby's Digest, § 623.
But it is equally true that in 1806 the following acts relative to the solemnization of marriages were passed.
Sec. 4 provides that the person solemnizing any marriage shall file certificate with the clerk for record. Laws of Arkansas Territory, p. 394.
Sec. 2 of the schedule of the Constitution of 1836 provides that "all laws now in force in...
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