Greenawalt v. McEnelley

• Court: Pennsylvania Supreme Court
• Writing for the Court: Paxson
• Citation: Greenawalt v. McEnelley, 85 Pa. 352 (Pa. 1877)
• Decision Date: 19 November 1877
• Parties: Greenawalt <I>et al. versus</I> McEnelley <I>et al.</I>

85 Pa. 352

Greenawalt et al. versus McEnelley et al.

Supreme Court of Pennsylvania.

October 26, 1877.

November 19, 1877.

October 26th 1877.

Before MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ. AGNEW, C. J., and SHARSWOOD, J., absent

Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 180.

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H. P. Laird and H. D. Foster, for plaintiffs in error.—It is a novel proposition, that the admission of marriage by the husband, being against his interest, is of great weight; and that his denial of it, being in favor of his own interest, is entitled to little weight. Where declarations on the question of reputation and pedigree are divided, no conclusion of marriage can be drawn therefrom.

There being no evidence legally sufficient of a marriage at any time proven by reputation, cohabitation, and divided admissions, and a marriage having been alleged to have occurred at a particular time and place, the judge should have told the jury that the whole case rested on the testimony of Margaret Gilson. and that in examining that testimony they should also take into consideration the alleged contradictory statements she had made.

Mrs. Gilson's testimony ought to have been excluded, both on the ground of the policy of the law, and that she was directly interested in the result of the action.

Edgar Cowan and H. C. & J. A. Marchand, for defendants in error.

Mr. Justice PAXSON delivered the opinion of the court, November 19th 1877.

We need not discuss the question whether Margaret Gilson would have been a competent witness prior to the Act of April 15th 1869, Pamph. L. 30. That act clearly made her competent, this being a contest between parties claiming the estate of Benjamin Guffey, her deceased husband, by devolution. She was not called to testify against her husband, nor to any fact the knowledge of which was acquired by reason of her confidential relations with him, but as to matters within her own knowledge.

There was abundant evidence to prove the marriage. There was her own direct and positive testimony; the admission of their marriage by her husband, which is in the nature of direct proof and there was evidence of reputation and cohabitation. The court instructed the jury that in order to establish a presumption of marriage, there must be evidence of cohabitation as well as reputation. This is undoubtedly the rule. See Richard v. Brehm, 23 P. F. Smith 144, where this subject is discussed and authorities cited by Mr. Justice MERCUR. In this connection the court further charged: "In this case it is conceded that the reputation of the fact as to whether they were married or not was divided in its character, and therefore there could be no presumption of the fact of the marriage raised from cohabitation and reputation. Cohabitation and reputation, in so far as they are developed in the cause, strengthening the one way or weakening the other, are proper circumstances to be looked at, either in affirmance of the truth of the assertions of Mrs. Gilson and the admissions of Benjamin Guffey, or in opposition to them, as they may tend to evince a want of truth in her statement. Whilst cohabitation and reputation are not by themselves, under the evidence in this cause, presumptive evidence of marriage, yet they are proper facts to be taken into consideration in determining the cause, as the courts say, with other...