Herd v. Herd

• Decision Date: 14 October 1915
• Docket Number: 737
• Citation: 194 Ala. 613,69 So. 885
• Parties: HERD v. HERD.
• Court: Alabama Supreme Court

69 So. 885

194 Ala. 613

HERD v. HERD.

No. 737

Supreme Court of Alabama

October 14, 1915

Appeal from Probate Court, Talladega County; M.N. Manning, Special Judge.

From a decree of the probate court, granting letters of administration to Viola Herd on the estate of John P. Herd deceased, Sandie Herd appeals. Reversed and remanded.

Knox Acker, Dixon & Bingham, of Talladega, Richard B. Kelly, of Birmingham, and J.B. Atkinson, of Clanton, for appellant.

Cecil Browne, of Talladega, for appellee.

MAYFIELD J.

This is an appeal from a decree of the probate court of Talladega county, granting letters of administration to appellee on the estate of John P. Herd, deceased. Whether or not the appointment was proper is conceded to depend solely upon the question whether or not appellee was the wife of intestate.

The case was tried under an agreed state of facts, which, so far as pertinent, were as follows:

"It is agreed that on the 20th day of May, 1905, there was a marriage attempted to be performed between the said John P. Herd and said Viola Herd, or Viola Williamson, as she was at that time, by J.W. Langley, who was a notary public and ex officio justice of the peace in beat No. 11, Talladega county, Alabama; that said J.W. Langley at such time had in his possession several marriage licenses signed in blank by J.E. Camp, judge of probate of Talladega county, Alabama which were sent him by said Camp, with authority to fill out and issue to such persons as applied to him to marry, and that he accompanied the said John P. Herd and another to the residence of Viola Williamson's father, and in his presence and that of her mother, and after filling out a marriage license, the original of which is hereto attached marked 'Exhibit A,' by writing in the name of Viola Williamson and John P. Herd as the contracting parties, proceeded to perform what he considered was the marriage ceremony, in which he asked each party 'Do you take the other as man and wife, asking the questions usually asked in performing such ceremony. And it is further agreed that both parties assented to the same, and thereupon he pronounced them man and wife; that after said alleged ceremony took place said J.W. Langley left the house of said Viola Williamson, or Viola Herd, accompanied by John P. Herd, and that said John P. Herd had never lived with said Viola Williamson after such time, or cohahited with her, or in any way contributed to her support; that on or about the 12th day of September, after said alleged ceremony, there was born to the said Viola Williamson, or Viola Herd, a child called Marvin, which was the child of said John P. Herd. It is agreed that said John P. Herd did have sexual intercourse with said Viola before May 20, 1905, and some five months before said date; that at the time of said alleged marriage each said party, John P. Herd and Viola Williamson, were of marriageable age and theretofore unmarried. It is agreed that after such time that witnesses for the said Viola Herd, or Viola Williamson, would testify that John P. Herd stated that said child was his child and that said Viola was his wife. It is further agreed that during the time from the 20th of May, 1905, until the time of John P. Herd's death that he lived with his mother, Margaret E. Herd, about 2 1/2 miles from Sylacauga, and that said Viola Williamson, or Viola Herd, lived with her father in the town of Sylacauga, Alabama."

It has long been the settled law of this state that acts and circumstances such as here recited do not constitute a valid statutory marriage, because the justice of the peace has no authority to issue the license. Campbell v. Gullatt, 43 Ala. 57; Beggs v. State, 55 Ala. 108; Ashley v. State, 109 Ala. 49, 19 So. 917; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640, 110 Am.St.Rep. 53. In fact, there is no contention to the contrary in this case, but it is conceded that there was no statutory marriage. It is sincerely contended, however, that the agreed statement of facts does establish a common-law marriage, a form of marriage recognized and treated as valid in this state; and the trial court found and decreed in line with this contention.

It is insisted by the appellee, and was so held by the acting probate judge, that if the contract be made per verba de praesenti, as was done in this case, then it is not necessary that the agreement be followed by cohabitation, to constitute a valid common-law marriage; that subsequent cohabitation is necessary only where the agreement is per verba de futuro. The contention of appellant is that cohabitation must follow the agreement, though it be per verba de praesenti, in order to constitute a valid common-law, or informal, marriage, as it is indiscriminately called by law-writers on the subject. The question for decision here is therefore single and clear-cut.

There is no doubt that there is authority for the contention of each party. It is said by no less eminent authorities than Mr. Greenleaf and Chancellor Kent that marriage is a civil contract, jure gentium, to the validity of which the consent of the parties, able to contract, is all that is required by either natural or public law. If the contract is made per verba de praesenti, though it is not consummated by cohabitation, or, if it be per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary. 2 Greenl.Ev. pp. 441, 442; Kent's Com. p. 87. Mr. Parsons, speaking of the question as stated by Chancellor Kent and Mr. Greenleaf, says:

"Mr. Chancellor Kent, in the fifth and subsequent editions of his Commentaries, said: 'If the contract be made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of all civil regulations to the contrary.' In his first four editions he omitted the words which we have italicized. But these words seem to us extremely material. They make the statement accurate and certain. They leave, however, the real question undecided for all practical purposes; for in what civilized land is there an absence of all civil regulations to the contrary? In the case

of Jewell's Lessee v. Jewell [1 How. 219, 11 L.Ed. 108], which came before the Supreme Court of the United States, on error from the Circuit Court for the District of South Carolina, this precise question came up. The court below cited the above passage from Kent, but from an early edition, and therefore without the very material clause we italicize, and instructed the jury that this was law. Exceptions were taken, and the case was carried to the Supreme Court of the United States, where Taney, C.J., in giving the opinion of the court, refers to this instruction and says: 'Upon the point thus decided, this court is equally divided; and no opinion can therefore be given.' " Contracts, vol. 2 (9th Ed.) star page 78.

"It would be impossible to discuss this subject fully either in the text or in the notes, without occupying too large a space. I would refer, therefore, to a very elaborate, and, as I think, accurate, investigation of the authorities and the law, in Jacob's Addenda to Roper on Husband and Wife, vol. II, pp. 445-475. I cannot but think that he places upon strong grounds his conclusion that a contract of marriage per verba de praesenti, without ceremony, or celebration of any kind, does not constitute a valid marriage at common law." Id., star page 79, note.

It will be found that there are adjudged cases from some of the best courts, including those of New York, Pennsylvania, Colorado, and Alabama, holding the rule as declared by Mr. Greenleaf; but the weight, if not the majority, of the cases holds the contrary rule, that cohabitation must follow the agreement, even though it be made per verba de praesenti; and if it could be said that the weight or number was not as above indicated, we would feel bound by our former holdings on the subject, since all of the authorities hold that the statutes have some effect in determining whether a ceremony and contract such as is shown in this case constitutes a common-law or informal marriage.

As stated by Chancellor Kent and Mr. Greenleaf, such marriages or contracts are valid only "in the absence of all civil regulations to the contrary." As well said by Mr Parsons, we know of no civilized nation or country which has not some civil regulations on the subject; and whether or not this regulation is to the contrary, or what effect such regulations have on the marriage, is for the courts of the particular states to say. Such contracts, agreements, or marriages as the one under consideration have been frequently considered by this court, and in almost every instance this court has said, whether dictum or decision, that, in order for marriages like this to be valid, the contract or agreement must be followed by cohabitation. It would consume too much time and space to attempt to review the text-books and adjudicated cases on this subject. There is not only lack of unanimity, but great conflict, and, in the language of the Supreme Court of the United States, the conflict amounts almost to a state of anarchy. It cannot be denied that there is high and much authority to the proposition that it is not necessary to the validity of a common-law or informal marriage that the contract, if made in the present, be followed by cohabitation. This court, however, held that such a contract of marriage, to be valid as a common-law marriage, must be followed by cohabitation. This court has never recognized the distinction which Chancellor Kent and Mr. Greenleaf made between contracts in praesenti and those in futuro. It has repeatedly held that cohabitation after the...