In re Comly's Estate

• Decision Date: 28 March 1898
• Docket Number: 86
• Parties: In the Matter of the Estate of Joseph H. Comly, deceased. Appeal of Eleanor P. Comly, Marion C. Comly, Amy L. Comly and Joseph C. Comly
• Court: Pennsylvania Supreme Court

39 A. 890

185 Pa. 208

In the Matter of the Estate of Joseph H. Comly, deceased. Appeal of Eleanor P. Comly, Marion C. Comly, Amy L. Comly and Joseph C. Comly

No. 86

Supreme Court of Pennsylvania

March 28, 1898

Argued January 5, 1898

Appeal No. 86, Jan. Term, 1897, by Eleanor P. Comly et al., from decree of O. C. Phila. County, dismissing exceptions to adjudication. Affirmed. STERRETT, C.J., and MITCHELL, J dissent.

Exceptions to adjudication.

The facts appear by the opinion of the court by ASHMAN, J., which was as follows:

The difficulty which lay in the claimant's path to recognition as wife of the decedent was the absence of any formal ceremony of marriage. Whether wisely or not, the law of the state has placed marriage on the footing of a contract, and has so favored it as an institution as to relax the rules of evidence which it applies to all other compacts. A partnership for business purposes could not be proved by the fact that two or more parties merely consort together in a store, and are reputed in the neighborhood to constitute a firm; yet cohabitation by a man and woman, and the general reputation that they are husband and wife, are legal proofs of marriage. Reputation, as a synonym for consensus of public opinion, has a fixed meaning, but it is not a word denoting extent of territory. A man who is the center of a large acquaintanceship in the city may have his home in a village miles beyond the municipal limits. In a question affecting the fact of his marriage, the opinion of the few neighbors who make up his social circle will outweigh the negative testimony of a thousand citizens who know nothing and care nothing about the matter. The proof by way of reputation which was submitted by the claimant, and which was criticised as meager, must be weighed in the scale of this definition. The decedent had practically no home life; he was employed in the fire department, was subject to call at any moment of the day or night, and six nights in every week he slept in the firehouse. The ordinary methods by which men maintain neighborly and friendly intercourse with their fellows were absolutely shut out to him, and socially he was almost as much of a recluse as the inmate of a prison. It is a matter of surprise, under these circumstances, that his repute as the lawful husband of the claimant should have been so well defined and so clearly established among the residents of the district in which he had settled the claimant. His repeated acknowledgments that the claimant was his wife to the physician, the shopkeeper and the few visitors, bound him quite as effectively as they would if they had been made at a ball or printed in the shape of a visiting card. Such admissions are direct evidence of marriage, standing on a higher plane than the presumption arising from cohabitation and reputation, and being in themselves sufficient to sustain an indictment for polygamy: 2 Green. on Ev. sec. 461, note 1. It is touching very nearly upon sarcasm to say that the admissions of a man that he is married are declarations against his own interest; but they are, for the reason that marriage imposes new burdens and responsibilities. The evidence adduced by the claimant on this point, the most important of all, was emphatic, and it was not neutralized by the averments of the decedent's relatives that they had never heard of the marriage. Most of the inhabitants of Philadelphia would have testified to the same effect, if they had been called to the stand. The decedent had seen fit to conceal it from his kindred, and he had been enabled by the very nature of his occupation to keep up the deception to the end. The strength of the defense to the claim rests on the proposition that the contract was simply executory. However this may be, it was not entered into without deliberation. The decedent had satisfied himself by personal inquiry that the divorce between the woman and her former husband had been perfected, and he had formally proposed to her and had been as formally accepted. At a later day he said to her "Would you be willing to marry me in this way, that you and I are to live together until death separate us; I take you to be my wife, and you take me to be your husband?" She replied: "Yes, sir; until death separate us." Even in form this was an absolute contract; the words of obligation on both sides were in praesenti. The decedent then asked: "Are you willing for that?" And the claimant answered: "I guess I would be; but don't you think we had better be married by a minister?" The decedent met this objection by saying: "It is just as lawful in this state as if we were married by a minister; all the ministers in creation cannot make you happy or make you do what is right; but if we live together and do what is right, we are just as lawfully married as if a dozen ministers married us." He was, theologically and technically, right in his position. See Richard v. Brehm, 73 Pa. 140. The woman was convinced by it, and she accepted his offer to take her as his wife by immediately making her abode with him. Can it be possible that any words which she might have spoken could have made out a present contract on her part more absolutely than did this act of acceptance? She had said she would be willing to take him as her husband if a minister should marry them; he had assured her that a minister was not needed, and she thereupon unconditionally took him. Was it necessary to say in words what this act said more loudly than words? In a hundred cases which might be cited, it has been decided that silence means acquiescence. In this case there was something more potent than silence -- the deliberate action of the claimant. The contestants admit that if she had said to the decedent, "I take you," she would have become his lawful wife. They aver that she said instead, "I will be willing to take you," and thereupon she actually took him at his word and became a profligate. This is a narrow distinction on which to hang the character of a woman and the legitimacy of her children. Just the opposite rule prevails, however. Where words in futuro in an agreement to marry are followed by cohabitation, the contract is executed and the marriage is valid: 2 Kent's Com. *87; Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; Richard v. Brehm, supra.

Next in importance as an item of testimony comes the claimant's interview with a reporter. In spite of the asseverations of decedent's relatives that his marriage was unknown to them, some tidings got abroad that a wife was living, and immediately after the death a reporter called upon the claimant. He admitted frankly that his object was to obtain a sensational story for his paper. With that in mind, he commenced the interview by asking the claimant whether she intended to claim the body and take it from the custody of the sister. He testified that she answered no, that she had never been married to the decedent, and that she was in great distress in consequence. Her own account was that she told the witness she had never been married to the decedent by a minister. It is unfortunate that the reporter was not cross-examined as to his own conception of what constitutes a valid marriage. He may have shared the notion which prevails in a large class in society, that a union which is not solemnized by a religious rite is meretricious, and have taken it for granted, when the claimant told him she had not been married by a clergyman, that she meant to say she had not been married at all. It is also quite possible that at this trying moment the claimant was harassed with a doubt which had never visited her before. She was alone in the world; the dead body of her husband was in the keeping of those who were strangers to her, and it was suddenly suggested that, as his wife, she was entitled to demand its custody. How should she prove the marriage which gave her that right, and which, in her faith in her husband's assertions, she had always believed had existed. She had no witness but herself, and she might have doubted her competency, even if she had known the process by which she could bring forward her evidence. She may be pardoned for the doubt; even the learned counsel for the contestants had the same misgivings, and vehemently objected to her right to testify as to the contract of marriage with the decedent. In Nathan's Case, 2 Brews. 149, the wife's doubt as to the fact of her marriage went so far that, after its alleged date, she charged her husband with seduction and brought an action against him for breach of promise. Yet it was held that these acts did not invalidate a marriage which had been sufficiently proved.

Other and minor details in the conduct of the claimant were the subject of reproach by the contestants. One was that she did not visit her husband in his last sickness. He had, however, advised her not to come, and had sent her almost daily a letter, assuring her of his early recovery. She attended his funeral, but without her widow's weeds, and, to add to the enormity of her offense, even without flowers. Her reason was that if she had worn the one or carried the other, she would have met, perhaps, as the reporter himself hinted, an unpleasant reception.

This case is not exceptional in character. Other cases are on record where the origin of the marriage relation was in doubt and where the proofs of cohabitation and repute were scanty but where, nevertheless, the marriage was sustained: De Amarelli's Estate, 2 Brews 239, and Hamilton v. Hamilton, 9 Cl. & Fin. Reps. 327, are among them. In the former, the wife lived in a circle so far below that of her husband, and her intercourse with him was so limited, that she did not know of his death and burial in the city of her own residence. In Strauss's Estate, 168...