Denison v. Denison

Alvey, J., delivered the opinion of the Court. ³⁷⁰ The first question to be decided in this case arises upon the motion of the appellee to dismiss the appeal. The ground of the motion is, that the record has not been made up as required by law; that the Act of 1867, ch. 373, sec. 3, which provides for taking testimony in the Orphans’ Court of Baltimore city by a stenographer, has not been complied with, inasmuch as the depositions have not been signed by the witnesses who testified, nor by the stenographer, or the presiding Judge of the Court. But in answer to this motion it is enough to say, that the record discloses nothing to indicate to this Court with certainty that the testimony was taken under the authority of the Act referred to. It may, for aught that appears, have been taken in the ordinary way; or, what is more likely, judging from the statement of counsel, it may have been taken under an agreement of the parties, whereby the signatures of witnesses, and of the stenographer and Judge were all waived.

The mere fact that in the summary of costs, indorsed on the record, an item occurs for the services of a stenographer, is not such evidence that the testimony was attempted to be taken under and by authority of the Act of 1867, as will justify this Court in regarding it. The motion to dismiss therefore must be overruled. The case being before us, the record presents questions of great and most delicate interest to society, and which would seem to be presented for the first time for direct adjudication in this State. The appellee alleges herself to have been the lawful wife of Henry C. Denison, who lately died intestate, and, as his widow, entitled to the one-half of his personal estate; the intestate dying without children.

It is not pretended that there was ever any solemnization of marriage between the appellee and the deceased; but it is alleged by the appellee, that from the 17th of January, 1863, until the death of the intestate, he and she were husband and wife, they having mutually agreed from that time thenceforth to be and regard each other as such. That, in pursuance of ³⁷¹ such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased, up to the time of his death, as his wife; and that they both acknowledged, recognized and acted towards each other in all things, as husband and wife, and were known, treated and reputed to be such, among their friends and acquaintances. Upon proof taken, the Orphans’ Court decided that the appellee had been lawfully married to the deceased, and that, as his widow, she was entitled to share in the distribution of his estate. It is from such decision that the present appeal is taken.

Without any special reference to the evidence, as to whether the allegations of the appellee are fully proved, the first question that presents itself is, whether such marriage as is here set up and relied on, can be maintained by the laws of this State ? It is contended on the part of the appellee that such marriage is good and effectual at the common law, or rather by the canon law; and that, as we have adopted the common law of England, of which the canon law forms part, this marriage must be sustained, having been contracted by the parties, as it is alleged, per verba de prccsenti. This proposition, on the other hand, is controverted by the appellant, by whom it is contended, that such marriage, even if contracted as alleged, was not valid and binding, because it was not duly celebrated according to the rites of any church, or religious denomination of any kind whatever; and that the common law gives no sanction to any such marriage as that attempted to be established by the appellee. In order to determine this question, we shall, in the first place, endeavor to ascertain and show what the common law of England required to make a valid and binding marriage, prior to the Marriage Act of 26 Geo.

II, ch. 33; and, in the second place, what is required, either by the common or statute law of Maryland, in that respect. ³⁷² By the canon law of Europe, founded mainly upon the Roman civil law, prior to the Council of Trent, in the sixteenth century, the contract of marriage was regarded as simply of a consensual nature, only differing from other contracts in its being indissoluble even by the consent of the parties. In form, a contract per verba de prcesenti, or a promise per verba de futuro cum copula, constituted a valid marriage, without the offices of a priest, till the decrees of the Council of Trent, which required the intervention of the parish priest to give validity to the marriage. The promise per verba de futuro, when, followed by carnal intercourse, was considered as equivalent in legal effect to the contract per verba de prcesenti. In $he matrimonial law, as administered by the canonist, it was a maxim, consensus, non concubitus facit nuptias ; and this remains the law to the present day in some parts of Europe, where the civil and canon law prevail, and where the decrees of the Council of Trent have not been accepted, — as in Scotland.

Dalrymple vs. Dalrymple, 2 Hag. C. Rep., 54. [ But the civil and canon laws, as such, never had force in \ England. They were regarded and accepted only as part of \ the common or unwritten law. Blackstone, in speaking of 1 the subordinate character of these laws, says, that “ it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some Courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the King’s Ecclesiastical Law.” 1 Com., 84.

And so Professor Wooddesson, in his Lectures on the Laws of England, (Led. 5, p. 78,) says: “Many of our present ecclesiastical laws are undoubtedly of foreign extraction, and some are entirely of English origin. But now they all alike depend, as to their general binding authority, on the same foundations as the whole body of our English laws, ³⁷³ immemorial custom, and express Act of Parliament.” The decrees of the Council of Trent, however, were never accepted or recognized to be of any force whatever in England. The civil and canon laws, therefore, have no operation in England, except only as they may have been incorporated into the system of the common law; and in ascertaining what Avas the laAV of England in regard to the mode and manner of contracting marriage prior to or independently of the marriage Act of 26 George II., passed in 1753, we do not appeal to the civil or canon Iuav as such, but to the common laAV as a system peculiar to England and her institutions. What then, by the law of England, prior to the marriage Act, aahs the effect of an engagement of matrimony, such as is alleged to have been entered into by the parties hero, merely per verba de prcesenü f or, in other Avords, a contract of present marriage, Avithout any. solemnization or celebration whatever ?

We can best ansAver this question by resorting to and quoting from some few standard authorities, Avhich have been approAmd and repeatedly relied on by all the highest Courts in England, as containing a true and correct expression of the laAV. Perkins, an author of high repute, who wrote in the time of Henry Will., in his Treatise on the Laws of England, sees. 194, 195, 306, stated it as unquestionable law, that after a contract of marriage between a man and a woman, they were not one person in law, inasmuch as in case of the woman’s death before the marriage solemnized between them, the man to whom she was contracted should not have her goods as her husband. And so again, he says, that if a man, seized of land in fee, make a pre-contract of matrimony with J. S. and die before the marriage is solemnizad, she shall not have dower, for she never Avas his wife. Swinburne, an author of the time of Queen Elizabeth, in his Treatise on Espousals, see. 17, says: “ Spousals de preesenti, ³⁷⁴ though not consummate, be in truth and substance very matrimony.

Although by the common law of this realm, (like as it is in France and other places,) spousals, not only de futuro, but also de prcesenti, be destitute of many legal effects wherewith marriage solemnized doth abound, whether we respect legitimation of issue, alteration of property in her goods, or right of dower in the husband’s lands.” And again he says: “ Other, effects there be of spousals, whereof some respect the issue or children begotten before celebration of the marriage betwixt those which have contracted spousals, and some have relation to their lands and goods. Concerning their issue, true it is that by the canon law the same is lawful; but by the laws of this realm, their issue is not lawful, though the father and the mother should afterwards celebrate marriage in the face of the church. Likewise concerning lands, by the canon law the foresaid issue may inherit the same; but it is otherwise by the laws of this realm, for, as the issue is not legitimated by subsequent marriage, no inore can he inherit his father’s land; and as he cannot inherit, no more is she to have any dower of the same lands, for whereas, by the laws of this realm, a married wife is to have the third part of her husband’s lands, holden in fee-simple or fee-tail, either general or special, for her dower after her husband’s death, during her life, so that she be above the age of nine years at her husband’s death, yet, a woman having contracted matrimony, if the man to whom she was betrothed die before the celebration of the marriage, she cannot have any dower of his lauds, because as yet she is not his lawful wife, at least to that effect. Concerning goods, the like may be said of them as hath already been spoken of lands, that is to say, that although by the civil and canon laws, where the man doth gain any of the woman’s goods, or the woman gain any of the man’s goods, by reason of marriage, spousals de prcesenti or de futuro, consummate with carnal knowledge, have the same effect as hath matrimony solemnized, yet by the laws of this realm it is otherwise; so that' neither spousals de pros ³⁷⁵ senti, neither spousals de futuro consummate, do make her goods his or his goods hers; and hence it is that a woman contracted in matrimony, dying before the celebration of the marriage, may make her testament, and dispose of all her goods at her own pleasure, which after solemnization of the marriage she cannot do without his license and consent.

And on the other side, the man dying intestate before celebration of the marriage, the woman to whom he was betrothed surviving cannot obtain the administration of his goods as his widow, which otherwise) the marriage being solemnized, she might do. And the like I read to be observed in divers other countries, as in France and Saxony, where neither he nor she gain any part of the other’s goods by being affianced, unless the marriage be solemnized, if not consummate also.” The principle stated by Perldns and Swinburne, as to the inchoate nature of the marriage contract per verba de preesenti at the common law, is distinctly recognized by Lord Hale, in a manuscript note, which was incorporated by Mr. Hargrave among the notes to Co. Litt., 33 a. This distinction between the common law of England and the canon law of Europe, unaffected by the decrees of the Council of Trent, as to the force and effect of the contract of marriage per verba de preesenti, has been very distinctly recognized to exist by the most distinguished Judges of the Ecclesiastical Courts of England. In the case of Scrimshire vs. Sarimshire, 2 Hag.

C. R., 395, a cause for the restitution of conjugal rights, decided in 1752, by Sir Edwakd Simpsox, that learned Judge, in declaring against the legality of the marriage in that ease, said: “And I apprehend, unless persons in England are married according to the rites of the Church of England, they are not entitled to the privileges attending legal marriages, as thirds, dower, &c.” So, in the case of Dalrymple vs. Dalrymple, before referred to, Sir William Scott, in the course of the celebrated judgment delivered by him in that case,