Thewlis's Estate
| Decision Date | 01 April 1907 |
| Parties | Thewlis's Estate. |
| Court | Pennsylvania Supreme Court |
Before MITCHELL, C. J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ. Affirmed.
Joseph H. Taulane, of White, White & Taulane, with him Ernest E. Prevost and Thomas Earle White, for appellant.— A marriage will not be presumed where a man, during the lifetime of his lawful wife, whom he has deserted, contracts a second marriage, and it affirmatively appears that after the death of the lawful wife no subsequent marriage of any kind was entered into between the man and the alleged second wife: Physick's Estate, 2 Brews. 179; Heffner v. Heffner, 23 Pa. 104; Thomas v. Thomas, 124 Pa. 646; Clark's Est., 173 Pa. 451; Hantz v. Sealy, 6 Binn. 405; Commonwealth v. Stump, 53 Pa. 132; Richard v. Brehm, 73 Pa. 140; Comly's Est., 185 Pa. 208; Hines's Est., 10 Pa. Superior Ct. 124.
While in the absence of direct proof of such fact, marriage may be proved by cohabitation and reputation, such elements of proof do not constitute marriage: Richard v. Brehm, 37 Pa. 140; Tholey's Appeal, 93 Pa. 36; Grimm's Estate, 131 Pa. 199; Reading Fire Ins., etc., Co.'s Appeal, 113 Pa. 204; Yardley's Est., 75 Pa. 207; Hunt's Appeal, 86 Pa. 294.
It seems to be well-nigh universally established, however, that where the relation between a man and woman is illicit at its inception, such relation is presumed to continue illicit until there is proof of a changed relation, either by the ratification of a new and valid contract of marriage, or the proof of such facts and circumstances from which a marriage in fact may be presumed: 1 Bishop on Mar., Div. & Sep., sec. 961, p. 149; Schouler on Domestic Relations, sec. 26; Cunninghams v. Cunninghams, 2 Dow, 482; Lapsley v. Grierson, 1 H. L. Cas. 498; Physick's Estate, 2 Brews. 179; Bicking's App. 2 Brews. 202; Grimm's Est., 131 Pa. 199; Reading Fire & Trust Co.'s Appeal, 113 Pa. 204; Hunt's Appeal, 86 Pa. 294; Bergdoll's Est., 7 Pa. Dist. Rep. 138; Hunt v. Cleveland, 6 Pa. C. C. Rep. 592; Weitzel v. Central Lodge, 1 Pa. Dist. Rep. 143; Jones v. Jones, 4 Pa. Dist. Rep. 223; Staiger's Est., 7 Pa. Dist. Rep. 351.
The dissolution of the marriage of testator with his first wife, by divorce, will not be presumed, in the absence of any evidence to that effect, in order to support the validity of the second marriage: O'Gara v. Eisenlohr, 38 N. Y. 296; Wile's Est., 6 Pa. Superior Ct. 435; Randlett v. Rice, 141 Mass. 385; Collins v. Voorhees, 47 N. J. Eq. 555 (22 Atl. Repr. 1054); Cartwright v. McGown, 121 Ill. 388 (12 N. E. Repr. 737).
N. Dubois Miller, of Biddle & Ward, with him H. Alan Dawson, for appellee.—The presumption in favor of innocence and of legitimacy both compel the conclusion that a divorce had been obtained by one or the other of the parties to the original marriage between John W. Thewlis and his first wife before either of their second marriages took place: Hynes v. McDermott, 91 N. Y. 451; Senser v. Bower, 1 P. & W. 550; Richardson's Est., 132 Pa. 292; Wile's Est., 6 Pa. Superior Ct. 435; Blanchard v. Lambert, 43 Iowa, 228; Harris v. Harris, 8 Ill. App. 57; Coal Run Coal Co. v. Jones, 127 Ill. 379 (8 N. E. Repr. 865); Klein v. Laudman, 29 Mo. 259.
When a man and woman have entered into a formal marriage relation which at the time is invalid because of a preexisting obstacle, and when the obstacle has been removed, they continue to live together as man and wife for a long period of time, recognizing the existence of the marriage relation between them by many indisputable proofs, there is sufficient evidence upon which a jury or judge in the orphans' court may find as a fact that at the time of the death of one of them the marriage relation existed: Physick's Est., 2 Brews. 179; Vincent's App., 60 Pa. 228; Drinkhouse's Est., 151 Pa. 294; Pickens's Est., 163 Pa. 14; Strauss's Est., 168 Pa. 561; Staiger's Est., 7 Pa. Dist. Rep. 351; Wile's Est., 6 Pa. Superior Ct. 435; McCausland's Est., 213 Pa. 189; Campbell v. Campbell, L. R. 1 Sc. &. Div. App. Cases, 182; Hicks v. Cochran, 4 Edw. 107; Rose v. Clark, 8 Paige, 574; Fenton v. Reed, 4 Johns. 52; Blanchard v. Lambert, 43 Iowa, 228; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Teter v. Teter, 88 Ind. 494; Hantz v. Sealy, 6 Binney, 405; Hunt's App., 86 Pa. 294; Grimm's Est., 131 Pa. 199; Bott's Est., 10 Pa. Dist. Rep. 122; Hunt v. Cleveland, 6 Pa. C. C. Rep. 592; Philbrick v. Spangler, 15 La. Ann. 46.
PER CURIAM, April 1, 1907:
Decree affirmed on the opinion of Judge PENROSE, dismissing exceptions to the adjudication.
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