Jackson v. Jackson

Bryan, J., delivered the opinion of the Court. An issue was sent from the Orphans’ Court of Dorchester County, to the Circuit Court, in these words : “ Is Sallie Jackson, the petitioner in this cause, the only lawful child ¹⁸⁶ of Richard Watson Jackson, intestate, deceased, whose estate is sought to be administered upon.” And it was ordered by the Orphans’ Court, that upon the trial of the issue, Sallie Jackson should be plaintiff, and the decedent’s brothers and his sisters and their husbands should be defendants. At the trial before the jury the plaintiff introduced a good deal of testimony tending to prove the marriage of her parents and her legitimacy. It was in evidence that Richard Watson Jackson was residing in Philadelphia, and that he and Mary Morris, who was residing there in February or Márch, eighteen hundred and seventy-two, went to Chester to be married, and after they returned, both of them stated that they were married.

It was also testified that they acknowledged each other as husband and wife; that they cohabited together and were generally reputed to be married. It is not-certain, from the testimony, at what time their cohabitation conmenced or when the child was born. Evidence was also given of the declarations of Jackson and the reputed wife, who are both dead, that Sallie Jackson was their legitimate daughter; also of declarations to the same purport made by the mother of the reputed wife. On the other hand, the evidence in behalf of the defendants tended to prove declarations by Watson Jackson that he was not the father of Sallie Jackson, and declarations, both by him and the mother, that they were never married; that the reputation of the mother for chastity was bad, both- before and during her cohabitation with Watson Jackson; that they were not generally reputed to be married, and that they separated sometime in eighteen hundred and seventy-four, and never lived together afterwards.

It appears from the proceedings in the Orphans’ Court, that Watson Jackson died in October, eighteen hundred and ninety-three. It does not devolve upon us to settle the disputed questions of fact arising on the evidence; it was for the jury to determine the credibility of the testimony, and to draw all legitimate inferences from it. We are limited to a review of the questions of law decided by the Circuit Court as they ¹⁸⁷ are presented in the bills of exception. These are ten in number, and were all taken by the defendants.

They have appealed, as the verdict was in favor of the plaintiff. By the law of Maryland a valid marriage cannot exist unless it is celebrated by a religious ceremony. It is not required that the marriage should be proved by witnesses who were present at the time ; but such facts must be proved, as in the contemplation of the law will justifiy the inference that a religious ceremony has been performed. The declarations of deceased parents are admitted as evidence to prove the legitimacy of their children.

Craufurd v. Blackburn, 17 Md. 49 . It was said in the Berkley Peerage case: “ If the father is proved to have brought up the party as his legitimate son, this is sufficient evidence of legitimacy until impeached, and indeed it amounts to a daily assertion that the son is legitimate.” This assertion of the legitimacy of the son involves and implies the precedent condition that the parents were lawfully married. In Copes v. Pearce, 7 Gill, 247 , the evidence of the legitimacy of the female petitioner (Mrs. Pearce) consisted of the declarations of her reputed father, Giles Copes, deceased, that he had been married to her mother, and that she was his daughter; together with the fact that she lived with him as his daughter before her marriage, and proof that she was called “ Sister Betsy,” and treated and recognized as a sister by the sons of a woman whom he married after the death of her mother. The Court said: “ The declarations of Giles Copes are full and explicit with regard to his marriage and the birth of Elizabeth, the appellee; and his whole subsequent conduct, and the course and bearing of the brothers, is an entire corroboration of them.

Nothing short of actual proof of marriage and birth, by witnesses actually present, could be more convincing and conclusive.” Marriage may also be proved by general reputation. Boone v. Purnell, 28 Md. 607 . In most cases it is proved by general reputation, cohabitation and acknowledgment. This species of evidence is admissible in all cases, except actions to recover damages for adultery ¹⁸⁸ and indictments for bigamy.

Taylor on Evidence, sec. 517; Redgrave v. Redgrave, 38 Md. 97 . The probative force of such evidence will vary according to the circumstances with which it is connected. For the sake of illustration let us state a case. Suppose it is shown that a man and a woman, lived together as husband and wife for many years, and continued this connection until it was dissolved by the death of one of them; that their deportment on all occasions was that of married people; that they acknowledged each other as husband and wife ; that they were received in society as such, and were generally so reputed and esteemed, and that to all external appearance their lives were upright, moral and irreproachable.

This body of facts would lead any impartial mind irresistibly to the conclusion that they were married. The suggestion that they had been living in sin and dishonor would be justly rejected as irrational and scandalous. The necessary inference- then would be that their union originated under the circumstances which the law required to make it valid. In Vincent's appeal, 60 Pennsylvania State Reports, 240, there were unusual and irregular features attending the cohabitation between a man and a woman; but the facts of the case were of a peculiar character, and the Court thought that the pure fame and spotless reputation of the woman made it highly improbable that she would have consented to a lascivious connection, and they gave great weight to her exemplary conduct, in considering circumstances which otherwise would have been fatally suspicious.

But men and women frequently live together in honorable matrimony who do not possess the virtues of the couple in the supposed case. Therefore, it cannot be held that all of the facts which we have enumerated are absolutely necessary to prove marriage. They would prove it in a very complete and satisfactory manner. Circumstances less favorable would also establish it, but not so conclusively.

The lower the standard of rectitude of the parties, the less improbable would it be that they would lead a life of shame. And so we may say that the weaker the gen ¹⁸⁹ eral reputation of marriage, the less would be its effect in producing the conviction that it really existed. And matters of suspicion, if not satisfactorily explained, would in proportion to their gravity weaken the proposed inference, or might defeat it altogether. It is believed that the general principles governing this branch of the law are well settled by the authorities.

But there is sometimes considerable difficulty in applying them to combinations of facts. The plaintiff’s first prayer accumulates a number of facts relating to the acknowledgment of marriage of the parties and to cohabitation and reputation ; with regard to reputation it required the jury to find that they “ were recognized in the community of Salisbury as man and wife, and held themselves out to the world as such, and that they or either of them stated to one or more citizens of Salisbury that they were married in Chester, Pa.” Upon the finding of these facts it asserts that “ the law presumes that they were lawfully married, and the burden of proof is upon the defendants to show by a preponderance of evidence, that the said Watson and Mary were never lawfully married.” It does not require the jury to find that there was a general reputation of their mai'riage. They were recognized in the community of Salisbury by some persons as husband and wife; there was also evidence that there was a general reputation in the community in favor of the marriage ; on the other hand, there was evidence that they had never been recognized as married by the family of the man, and a witness testified “ that there was a divided opinion as to their being married; that the general opinion of those with whom he talked was that they were not married.” General reputation is of great importance in determining the nature of the cohabitation, and the question ought to have been submitted to the jury. It would have been competent for the jury to find the general reputation according to the evidence in behalf of the plaintiff, or they might have found according to the evidence on the other side.

But it is necessary that the reputation ¹⁹⁰ from which marriage is to be inferred should be general and not divided or singular. Barnum v. Barnum, 42 Md. 297 Jones v. Jones, 48 Md. 391 . The conclusion of the prayer is stated too strongly. The facts mentioned in the prayer, with the addition of general reputation, would have justified the jury in finding the marriage if they believed that it existed, but it was an error to say that these facts made the conclusion of law imperative in favor of a lawful marriage, and imposed on the defendants the burden of proving the negative.

Every fact stated in the prayer might have been found to be true, and yet the jury might properly have refused to sustain the marriage, because there was evidence qualifying these facts, and tending to throw discredit and suspicion on the cohabitation between the parties. Mary Fuller testified that during the time of the cohabitation the plaintiff’s mother stated that she was not married; and there was also evidence that her reputation for chastity was bad, both before the cohabitation and during its continuance. There was also evidence that Watson Jackson, during the time of the cohabitation, said that the child was not his. It was also testified that before they separated he stated in the woman’s presence “ that they were never married, and she knew it,” and that the woman made no reply.

If the character of the woman for chastity was bad, one of the elements would be wanting which give weight to cohabitation as one of the proofs of marriage, because it would be evident that moral restraints would not prevent her from living in concubinage. And if both man and woman stated that they were not married, these declarations would be grave impeachments of the connection between them. If they stated the truth the inference of marriage would, of course, be impossible. The cohabitation important to be considered in cases of this kind, is that which in its character and circumstances is consistent with the matrimonial union.

The jury must decide on the credibility of the testimony, and it was their province to decide the question of marriage according to the inferences, which, in their judgment, ought properly to be drawn from the evidence. ¹⁹¹ The plaintiff’s second prayer is in these words : “ If the jury find the facts set forth in plaintiff’s first prayer, then they are instructed that said marriage is legally presumed to have been duly and lawfully