Schmeizl v. Schmeizl

Markell,. J., delivered the opinion of the Court. This is an appeal from rulings at the trial of an issue sent from the Orphans' Court. Frederick Schmeizl died in Baltimore on December 27, 1943, intestate, without issue.

Letters of administration were granted to his brother, Joseph Schmeizl (the appellee, defendant), on January 15, 1944. The issue tried was, Is Matilda I. Schmeizl (the appellant, plaintiff) the widow of the decedent? The jury answered, “No.” On August 8, 1911, Frederick Schmeizl (the decedent) and Matilda I. Duerbeck (the appellant), both of Baltimore, were married at Baltimore by the Rev. Theo. A. Mead.

The license was issued on August 7th, the marriage certificate filed on August 9th. Neither had been married before. He was 21, she was 19. She and the administrator both testified that the decedent (so far as they know) never got a divorce.

She testifies that she never got a divorce and at the time of his death was .still married. On cross-examination she testified that: In September, 1911, a daughter (who did not survive the decedent) was born. On August 8, 1930, she left her husband and went, to California. About two weeks later she was ⁵⁸⁷ joined there by Bert Phillips, a man she and her husband knew in Baltimore.

Since 1930 she has lived in California continuously. She considers California her permanent address. She is known there as Mrs. Bert Phillips. Her ration books have been issued to her in that name.

She has registered as a voter in California under the name Phillips, but not this time (1944). She lived in the same house with Phillips, first at Los Angeles, now at Santa Rosa, where she has a little chicken ranch that he manages for her; he lives forty miles from her, but he comes back and forth. The administrator testified that: On August 8, 1930, the nineteenth wedding anniversary, “they were going to have a little party.” That is when the wife left with Phillips. They got in a taxicab and left a note that they were going to give the decedent “a dose of his own medicine.” The next time the administrator saw her was in the Orphans’ Court in January, 1944.

Some time in March or the first part of April, before she left to go back to California, she went to his house and had a conversation with him. While they were talking, she opened her pocketbook, and he saw her ration book in the name Phillips. “I said to her, Are you married to Phillips? She said, Why, yes. I said to her, Well, how about a divorce?

She says then, Well, I got to be married by a preacher out there without getting a license. A marriage license. And also it wouldn’t be put upon the court record. Then she said, I am married to him. * * * She told me that she was married by a preacher in California, * * *.

That is just the way that I remember it. I didn’t ask her the second time for she said that they did not get any license, for the law did not require that they be married by a preacher out there and they didn’t have any court record of it. * * * “[Q.] Did you ask her whether or not, * * *, she did not consider herself married at that time or whether she considered herself as divorced at that time from your brother? A. Well, you see, she thought that it didn’t amount to nothing. She could come back at any time ⁵⁸⁸ she wanted to if something happened, and claim her widow’s share. * * * “Q. * * * Did she say that she was married or divorced * * *?

A. Well, she says that she was divorced and she says she was married.” On cross-examination he testified: “Q. * * * When [she] * * * said to you that she was married by a minister in California did you then ask her for the name of that minister? A. Well, she mentioned some name but I can’t remember all those names. I can’t remember all of the names. * * * She never told me that she had got a divorce, * * *. «q. * * * did you ask her how she * * * could * * * have been married by a minister in California on the face of her statement to you that she had never gotten a divorce from your brother * * *? A. Well, she said something about that they did not keep any record of it and didn’t have no marriage license so it didn’t make any difference. “Q. In other words, * * * [she] said that she had never gotten a divorce, is that correct?

A. I never asked her that and she never said nothing. That is what she told me though. * * * “Q. * * * What did she tell you? A. She didn’t ever get a divorce and just said that she. got married and they didn’t need no marriage license and didn’t keep no record outside of the preacher’s. They didn’t have to go to court nowhere.

That is all we discussed about it. “Q. Well, after she * * * said to you that she was married to someone in California, did you ask her * * * how she expected to share in the estate if she was married to someone in California, did you ask * * * how she expected to share in the estate if she was married to somebody else? Did you ever ask her any question of that kind * * * ? A. She said that she didn’t think it was any difference for it was no record kept of it. She said, I don’t think it makes any difference.

But I didn’t ask her that.” ⁵⁸⁹ Before the administrator testified, the wife had testified on cross-examination that: She received a letter from an attorney saying that the decedent had died. She was here during February and March. She remembers the hearings in the Orphans’ Court at that time. While she was here, she went to the administrator’s home and talked with him.

She didn’t talk with him about her marriage to his brother. “I just told him I was not divorced, that is all. * * * I have been here twice in this year [1944], but the last time I was here I knew that he was the administrator and I wanted to get it all straightened out. I didn’t want to keep on coming back and forth all the time so much for I have to live in California on account of my health.” In the administrator’s testimony his statement, “she says that she was divorced,” is in effect contrary to his previous testimony and is flatly contradicted on his cross-examination. This statement has no probative force or evidential value. United States Fidelity & Guaranty Co. v. Continental Baking Company, 172 Md. 24, 33 , 190 A. 768 ; Slacum v. Jolly, 153 Md. 343, 351 , 138 A. 244 .

The administrator offered in evidence Section 79 of the California Civil Code: “Sec. 79. When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No other record need be made.” [Added by Code Amendments, 1877-78, p. 75.] The plaintiff (the wife) offered a prayer for a directed verdict, an answer “Yes,” on the ground that there is no evidence legally sufficient to prove that she was not the decedent’s widow.

She excepted to the refusal of this prayer and, on the same ground, to the charge to the jury. She filed a “motion for judgment n. o. v.,” viz., a motion that the “court enter a verdict for the plaintiff * * * notwithstanding the verdict of the jury.” The motion was overruled. ⁵⁹⁰ The appellee (the administrator) contends that: there is evidence legally sufficient to show that during the decedent’s life his wife and Phillips were married by a clergyman in California; by reason of the presumption of marriage and the presumption of innocence the California marriage must be presumed to be valid; consequently, the wife must be “presumed” to have got a divorce from the decedent; by these presumptions and inferences the presumption of continuance of the decedent’s marriage is overcome. Aside from the doctrine (which Wigmore says is fallacious) that the law will not permit an “inference upon an inference” (Krell v. Maryland Drydock Co., 184 Md. 428 , 41 A. 2d 502, 508 , decided March 2, 1945), the question in a particular case is whether the evidence is legally sufficient to support one or more particular inferences. Concerning the presumption of marriage and legitimacy, the statement most, quoted in later American cases, and also a concise statement of the doctrine of some leading British cases, are contained in the opinion of the New York Court of Appeals in Hynes v. McDermott, 1883, 91 N. Y. 451, 459 . “The presumption of marriage, from cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law.

This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. In Morris v. Davies (5 Cl. & Fin. 163) Lord Lyndhurst, speaking of this presumption, says: ‘The presumption of law is not lightly to be repelled.

It is not to be broken in upon, or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.’ In Piers v. Piers (2 H. L. Cas. 331) Lord Campbell said, that the presumption could be negatived only ‘by disproving every reasonable possibility,’ and Lord Brougham, in the same ⁵⁹¹ case, approved the general doctrine stated by Lord Lyndhurst, in Morris v. Davies, and said that the presumption could be dispelled only by evidence which was ‘clear, distinct and satisfactory.’ ” (Italics supplied). In Hynes v. McDermott no “presumption of divorce” was involved. In both English and American cases the presumption of marriage is closely related to the presumption of legitimacy.

In Morris v. Davies the presumption referred to by Lord Lyndhurst (5 Cl. and Fin. 265) was the presumption of legitimacy of a child born during marriage of the mother. In Piers v. Piers, the presumption discussed was the presumption of marriage — and consequent legitimacy of issue. Lord Chancellor Cottenham (like Lord Brougham), however, adopted the language of Lord Lyndhurst, saying: “It is not precisely the same presumption as exists in the present case; but the principle is strictly applicable to the presumption which we are considering.” 2 H. L. C. 362. The sentence in Hynes v. McDermott, italicized above, has been quoted, directly or indirectly, in many American cases, including Bowman v. Little, 101 Md. 273, 288 , 61 A. 223, 657, 1084 ; and Schaffer v. Richardson’s Estate, 125 Md. 88, 92 , 93 A. 391 .

In Bowman v. Little, it was indicated that the legal sufficiency of evidence in a particular case may depend upon whether or not the presumption of marriage is supported by the presumption of legitimacy. 101 Md. 314, 315, 61 A. 223, 657, 1084 . Cf. Stevens v. Stevens, 56 N. J. Eq. 488, 496-499, 38 A. 460 , cited in Schaffer v. Richardson’s Estate, supra. The question of marriage vel non is a question of fact.

The presumptions of marriage and legitimacy, of innocence, and of continuance of a marriage are presumptions of law (what Wigmore calls real presumptions), which affect, and may shift, the burden of proof and may affect the legal sufficiency of evidence. The so-called “presumption of divorce” (which seems to be unknown in England) is an application of conflicting, or (as Wig-more might say) shifting, presumptions to particular facts (which could not occur in a country with only one ⁵⁹² divorce court). The ultimate questions of law and' fact are whether the evidence, viewed in the light of all applicable presumptions, is sufficient in law and in fact to support the necessary inferences. In the instant case the only evidence of the alleged California marriage is the administrator’s testimony that when the wife had come from California to Baltimore to assert her rights as widow, she told him she had never got a divorce but had been married to Phillips by a clergyman in California.

The date of the marriage and the place in California are not mentioned; the clergyman’s name he does not remember. The weight and credibility of this testimony (cf. Bauder v. Blackiston, 149 Md. 322, 334 , 131 A. 454 ) would be matters for the jury. But what inference could rationally be drawn from the wife’s alleged statement depends largely upon the inherent nature of the statement. The administrator contends that from the wife’s statement thát she had not got a divorce but had married Phillips the jury might infer that she had got a divorce.

On a question of marriage and legitimacy vel non even hearsay admissions and declarations of the parties to the alleged marriage are admissible. Craufurd v. Blackburn, 17 Md. 49, 56 , 77 Am. Dec. 323 ; Brell v. Brell, 143 Md. 443, 448 , 122 A. 635 . A statement by a deceased mother that she had been married may be sufficient to prove the marriage and the legitimacy of her child.

Washington B. & A. R. Co. v. State, 136 Md. 103, 119 , 111 A. 164 . It does not necessarily follow that such testimony would be sufficient to overcome the presumption of continuance of another marriage. “One of the questions decided by the Supreme Court in the case of Gaines v. Relf, 12 How. 472 [ 13 L. Ed. 1071 ], was that an actual ceremonial marriage could not be made void by the mere confession or declaration of one of the parties to it, that he had another wife living at the time; and in disposing of this point the Court said: ‘The great basis of human society throughout the civilized world, is founded on marriages and legit ⁵⁹³ imate offspring; and to hold that either of the parties could by a mere declaration establish the fact that a marriage was void would be an alarming doctrine.’ ” Jones v. Jones, 48 Md. 391, 402 . “The great basis of human society throughout the civilized world, is founded on marriages and legitimate offspring; and where an existing marriage is proved, it is not to be exposed to the danger of being set aside by any species of collusion, or by the