Bauder v. Blackiston

Oeeutt, J., delivered the opinion of the Court. Thomas J. Blaekiston died in Baltimore City, of which he had been a life-long resident, on December 15th, 1924, at or about the age of seventy-five years. He left a paper writing purporting to be his last will and testament, in which he gave his estate to Emily Bauder, the appellant, with whom he had boarded for something over two- years immediately prior to his death. To that will, on January 21st, 1925, John L. Blaekiston, the appellee, filed a caveat, in which he ³²⁴ represented that he was the son of the decedent, and that he and his brother Harry Blaekiston were his only children and, with the decedent’s, wife, Margaret Blaekiston, his only heirs at law.

On February 24th, 1925, Emily Bauder, answering the caveat, denied that the caveator was the legitimate son of the decedent, and denied that Thomas J. Blackiston was ever married to Margaret Blaekiston, the mother of the caveator. Testimony in connection with the issue thus presented was taken in the Orphans’ Court of Baltimore City and, on May 22nd, 1925, that court ordered that the right of the caveator to maintain his caveat had been established, and authorized him to. prosecute the caveat and resist the probate of the supposed will’. From that order this appeal was taken. The only question which it presents is whether upon the evidence before it the orphans’ court was legally justified in deciding that the caveator was the legitimate son of the decedent.

Before referring to- the evidence bearing upon that question, we will advert to the legal principles which determine its validity, value, and effect. The precise issue of law made by the conflicting contentions of the parties is whether, where, as in this state, a religious ceremony is essential to a valid marriage, that fact may be inferred from habit and repute, where a qualified and capable witness is within the jurisdiction of the tribunal passing upon the question. The general rule, almost universally recognized in the courts of this country, is that in cases of this character marriage may be inferred from habit and repute (Bishop, Marriage, Divorce and Separation, pars. 927, 932), whether a religious ceremony is essential to its validity or not (Jones v. Jones, 48 Md. 403 ; Fornshill v. Murray, 1 Bl. 482 ), for, as was said in Jones v. Jones, supra: “If parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and especially if they are received into society and treated by their friends and relations- as having and being entitled to that status, the jaw will, in favor of morality and decency, presume that they ³²⁵ liare been legally married.” And while that rule appears to have originally rested upon the principles of necessity and trustworthiness (Wigmore on Evidence, par. 1602), it appears to have hardened into a' more ox loss arbitrary formula, which to some extent and in some instances at least dispenses with the requirement of necessity. The necessity which originally formed one of the bases of the rule was the difficulty of proving the fact of marriage through the disqualification, death, or disappearance of witnesses having direct knowledge of such fact, or the absence of any recorded evidence thereof, or the difficulty of securing actual witnesses to a private marriage.

Ibid. But in its application the rule has been extended to permit proof of marriage hy reputation and repute even in cases where the evidence of persons having direct knowledge of the fact is available; as in Brell v. Brell, 143 Md. 448 , where such evidence was admitted to prove a marriage although the husband testified that it never existed. But in this state that construction of the rule is subject to' this qualification, that where the party asserting the validity of the marriage relies upon a- particular form or ceremony and fails to prove that, he cannot afterwards rely on general reputation to establish it. Bowman v. Little, 101 Md. 294; Jackson v. Jackson, 82 Md. 28 ; Barnum v. Barnum, 42 Md. 251 .

In general, however, the fact of marriage may be inferred from habit and reputation, and “tliese elements of proof — namely, cohabitation, reputation, declarations, conduct and reception among friends and. neighbors as married — are commonly, in a perfect case, found in combination. All tbe latter ones are shadows attending on cohabitation, and they should be simultaneous therewith.” Bishop on Marriage, Divorce and Separation, par. 939. But while if an attempt to prove a¡ ceremony at a particular time and place, as in Barum v. Barnum, supra, fails for want of direct proof, that particular ceremony cannot he shown by proof of general reputation, habit or declarations, nevertheless, where there is no such particular specification of former ceremony, time and place hy the party asserting the ³²⁶ marriage, the fact that it occurred may be inferred from the habits and declarations of the parties and from general reputation. There is of course a certain manifest incongruity in proving a marriage by general reputation, conduct and declarations, when the actual parties to it, who must know whether it occurred, are within reach of the court’s process, and especially when they are actually sworn as witnesses in the case.

But where no particular form, ceremony, time or place is asserted, and'where the parties to it are not called, or if called are not examined by either side as to those facts, it cannot be said, in view of the decisions of this court in the two cases last cited, that marriage may not be inferred from satisfactory proof of general repute, conduct and declarations. It remains for us to consider in the light of these principles the value and the effect of the evidence relating to the issue of fact decided by the lower court. John W. Teufel, an undertaker, sixty-one years old, testified that he had known the appellee forty-six years, had known his father and mother when they were living together; that they were known in the neighborhood in which they lived as husband and wife, and that he knew them to be living together as husband and wife for about ten years, and that one of their children was bom while they lived in his parents’ home. Miss Motsham testified that she had gone with Mrs. Thom’as J. Blackiston to visit her husband’s parents; that they were respectable and refined people, that she knew that Mr. and Mrs. Thomas J. Blackiston lived together as husband and wife for a number of years, and that when she first knew them she was about six years old and lived on West Baltimore Street two or three doors away from them.

Dr. Haddaway, minister of the Star Methodist Protestant Church, produced and proved a baptismal record showing that a child named John Blackiston, son of Tom and Maggie ³²⁷ Blackiston, born on April 3rd, 1878, was baptised at that church on May 15th, 1878. Mrs. Gertrude Davis, a sister of Airs. Blackiston and aunt of the appellee, testified that she had known the decedent all her life, that he and her sister lived together in the community as husband and wife, and were so recognized by his parents, with whom they lived for a while, that they lived together as husband and wife for about fifteen years, that they lived for part of that time with her mother, and that there were two children of the marriage, John and Harry, and that Harry was a soldier stationed at Fort Aieyer. John K. Doenges, a brother of the appellee’s mother, testified that he had known Mr. Thoma's J. Blackiston about fifty years, that he was present when he and appellee’s mother came home and said they were married; that they lived at his home as husband and wife, and that one of the boys was born there, that they lived together and were understood in the community in which they lived to be husband and wife; that the parents of Thomas J. Blackiston were very fine people, and tha,t Thomas J. Blackiston and his wife lived with them for a time, that he was about sixty-two years old, and that he saw Mr. Blackiston about four weeks before he died, that his relations with him were always pleasant; that the decedent was until about fifteen years ago a hard drinker, and that his wife left him on that account, but that he continued to visit her from time to time and was there within a year of his. death.

John Blackiston, the appellee, testified that he was born April 3rd, 1878, that the first place he could remember living at was Teufel’s, where he, his father, mother and younger brother lived, that from there they moved to the house of his grandmother Doenges, and thence to his grandmother Blackiston’s until Teufel’s flat was available, that his father and mother lived together about fifteen years and when they separated his mother moved to her mother’s home, that his father begged her to come back, but she did not, that he remained on friendly terms with his father and ³²⁸ saw him about two weeks before his death, and called at the place where he died to “see his remains.” Mr. Bradford, outside manager of the Efazee-Potomac Laundry, at one time a clergyman, a nephew of the decedent, testified that he had -visited the home of the decedent when he and the mother of the appellee were living together, that they were “assumed” to he husband and wife, that the decedent spoke of his children and appeared to he proud of his boy in the army, and showed him a picture of that son in his uniform; that he spoke of them on every occasion. Mrs. Straub, sister of appellee’s mother, testified that decedent and her sister lived together as husband and wife for about fifteen years, and were reputed to be husband and wife. Mrs. Blaekiston, called by the cavatee, testified that her maiden name was Margaret Doenges, that she was married twice, that her first husband was ISTimrod Cromwell Hughes, who died fourteen months after their marriage, when she was about seventeen or eighteen years old, that the child mentioned in the baptismal certificate was her son John, the appellee, that she was living with Mr. Blaekiston on April 3rd, 1878, that she signed as “Maggie Hughes” certain receipts for money paid for the support of her son John, that she did that because she was separated from her husband. Upon being further examined as to her reasons for thus signing her name the witness gave this testimony: “Do- yon recall that you signed all of these papers which I have shown you, some of which are dated as late as 1887 and 1888, as Maggie Hughes?

A. Yes, because I never intended to- take his name. I did not think he was worth for me to- take hisi name. Q. What name do you gv by now ? A. Mrs. Margaret Dora Blaekiston.

Q. When did yon start to assume the name of Mrs. Blaekiston, A. Why I always did; only after I went home. I wasn’t going to- live with him and I told him I wouldn’t take his name and he begged me and said, ‘Don’t do anything like that,’ and his mother and the whole family said ‘Don’t do- that, don’t do- that. * * * ³²⁹ Why then did yon sign, in 1888, your name as Maggie Hughes ? A. Well I told yon that I intended never to go by the name of Blaekiston. Q. We have probably shown you twenty or twenty-five papers, extending over a period of several years, every one of which is signed as Maggie Hughes.

Can you give an explanation to the court why that is the case? A. I said I took the name of Hughes. * * * Q. I understood that those receipts, practically all of them cover receipts for money paid for the support of John. I ask you why support was paid to John and not to Harry ? A. Why, because we were living together then and he half-way supported me.

Hot wholly. Q. If you were living together, why did yon give receipts for the support of a child? A. Well, if you must know, I wasn’t living with him. That’s why.

Q. How do you reconcile that with your statement a while ago that you were living with him? A. Well, we wont together when John was fifteen months old. Q. You then started living with him when John was. fifteen months old? A. Yes.

Q. Where did you live before John was born ? A. I lived with my mother. * * * Q. And fifteen mouths after John was. horn yon went to' live with Mr. Blaekiston ? A. I went to live with Mr. Blaekiston’s. mother and father and then we went to. live at Teufel’s, because the apartment wasn’t ready when we wanted it. His mother said, ‘You stay here,’ and I could have stayed there forever and ever.’ ” And on cross-examination she said: “Q. Did I understand yon to say that you separated from Mr. Blaekiston afid told him you were not going to live with him any more?

A. Yes. * * * Q. How many times did you separate from Mr. Blaekiston ? A. Twice. * * * Q. And during that time you were paid some money for support and you signed the receipts? A. Yes, I intended to go by that name all the time. Q. I understand after you separated from him yon decided to. take the other name and kept it?

A. Yes, bet-cause my first husband’s people were of the highest standing. Q. How old were you about that time? A. I was nineteen ³³⁰ when John was bom. * * * Q. Who gave you the money represented by these receipts ? A. Why Tom would bring it in sometimes;; sometimes his father.” And upon being recalled she further testified: “Q. Can you say now, after several days’ reflection, when you first, the date that you first, assumed the name of Mrs. Blackiston ?

A. Well, after I was married, I took my husband’s name, Mrs. Blackiston, and always went by the name of Mrs. Blackiston and I never knew 'any other name. Q.