
    SPICER against SPICER.
    
      City Court of Brooklyn,
    
      General Term;
    
    December, 1873.
    Marriage.—Presumption oe Death.—Void and Voidable Marriage.—Testimony to Marriage. —Dower.—Estoppel.—Agreement, in Lieu oe Will.—Evidence oe Value.
    Under the provisions of 2 Rev. 8tat., 139, § 6,—making marriages contracted in good faith, &c., during absence of husband or wife, in certain cases, void only from the time that the nullity thereof shall be pronounced by a court of competent authority,—a marriage contracted, living the former husband or wife, is not to be regarded as valid for any other purpose concerning property, than that of preserving the inheritance of the offspring thereof, from the competent parent..
    
    A wife, whose husband absents himself, for the space of five successive years, without being known to her to be living during that time, is incapable of contracting marriage, notwithstanding the statute; and therefore is not entitled to dower in the property of her second husband.
    The mere acceptance of a conveyance, in which a woman is described as the wife of a person named, does not estop the grantee from assailing the validity of the marriage.
    A man living with a woman, under color of a void marriage, was about to devise his property to her, when his brother induced him to convey the property to him,—the brother,—upon the promise that he would pay the woman an amount equal to her dower, upon her husband’s death. ■ Reid, that having thus diverted the property by the force of this promise, ho was estopped from denying the validity of the marriage: and that, as against him, the widow could recover the value of her dower.
    The consideration-money mentioned in the title-deeds,—Held, under the circumstances, not sufficient evidence of value to sustain a verdict.
    Whether a widow, suing her husband’s grantee to recover dower, is not a competent witness to prove a marriage,
      
      —Query.
    
    Elizabeth H. Spicer sued George Spicer to recover the sum of forty-one thousand dollars, claimed to be due her as dower in the lands of her deceased husband.
    It appeared that Elizabeth married one Miller, in. 1839. He subsequently deserted her; and after more than five years’ absence she, believing, as she testified, that he was dead, married John Spicer. An intermediate marriage it is not necessary to notice. John and Elizabeth lived together, as husband and wife, from June, 1852, to July, 1868, when John died, leaving a ■considerable estate in real property. It appeared, by the testimony, that when John was very ill, in 1863, he proposed to Elizabeth that he should make his will; whereupon George, the defendant, the brother of John, interposed, saying he conld propose a better plan, namely, that John and his wife should convey the property held in John’s name to him, George, as one-half of it already belonged to him, and that in case of John’s death he would pay his wife her half, &c. John and Elizabeth accordingly executed deeds of the property to George, in which Elizabeth was described as the wife of John. These deeds were delivered to George Spicer, and, after the death of John, were recorded, and George Spicer took possession.
    Plaintiff’s complaint alleged her marriage with John, John’s ownership of the real property in question, during the marriage, and in his lifetime, and the circumstances of the conveyance to George on the faith of his promise to pay plaintiff dower,* and that the sum claimed was due her from defendant, by reason of his agreement,' and by reason of her right thereto also as dowress ; and further alleged promises to secure the sum due, and ad mitted small payments on account.
    The defense was that the marriage of John was void, because Miller, the absent first husband, was still living ; and he was in fact produced as a witness upon the trial.
    On the trial, plaintiff being examined as a witness, was asked among other things, When did you marry John Spicer?”
    Defendant’s counsel objected to any testimony by her as to any transaction or communication between her and John as inadmissible, under the Code, he being dead, and George, the defendant, being his grantee and assignee.
    The court ruled that she was competent to show the fact of the marriage, and admitted testimony of the plaintiff to the effect that she married John, stating time, place, officiating clergyman, and where they went, and some of the circumstances of their journey together, after the marriage. The witness was also allowed to state what transpired in her presence, when her husband became ill, in relation to this property; what was said between her and George, and her husband, with reference to the property. This, the court admitted only for the purpose of showing what the contract was between herself and George Spicer. The statements made by John in the presence of George, and within his hearing, were thus admitted.
    The jury found a verdict for the plaintiff for five thousand seven hundred and seventy-two dollars and eighty-five cents.
    On motion for a new trial made on the minutes, Mr. Justice McCue disposed of the objection as to the admissibility of plaintiff as a witness to prove her marriage by the following remarks:
    “I am still of opinion that the plaintiff was properly examined as a witness to prove her marriage with John Spicer, and that, on the question of her marriage with John “Spicer, the finding of the jury is supported by abundant testimony.
    “The object of the examination was not to affect, in any way, the rights of defendant as assignee or grantee of John Spicer (for the plaintiff expressly confirmed the conveyance made by John Spicer to the defendant), but to establish the plaintiff’s right to recover the value of her interest in the land so conveyed, arising out of an independent agreement between plaintiff and defendant.
    “ The defendant accepted the conveyances of the land cum onere, burdened with the rights of plaintiff in said land, as the wife of John Spicer, under a special agreement to pay her the value of her interest therein, upon the happening of a certain contingency, to wit: the death of John Spicer.
    “ The acts of John Spicer alone,—in introducing the plaintiff to the world as his wife, permitting her to join in the execution of deeds as his wife,—was sufficient, without other proof, to establish plaintiff’s position as wife and.widow, and to furnish a sufficient consideration for defendant’s promise. Her marriage with John, therefore, was abundantly established by John’s own acts and declarations. Plaintiffs testimony went no further than to fix the time when, and the person by whom, the marriage ceremony was performed. Her testimony could not possibly affect the transaction between the husband and the defendant, and does not come within the rule which induced the enactment that one person should not be allowed to be a witness as to transactions occurring between that person and another person then deceased.”
    
      The motion for a new trial having been denied, defendant appealed to the general term.
    
      JY. B. Hoxie, for defendant appellant.
    I. The exception to plaintiff’s testimony was well taken, for she was “a party to the action,” was “examined as.a witness in regard to a personal transaction or communication between herself and a person at the time of such examination deceased” (that is, John Spicer), “against the assignee of such deceased person” (that is, George Spicer). A grantee is an “assignee” within section 399 of the Code (Mattoon v. Young, 45 N. Y., 696). He was also “heir at law, and next of kin.” The test of the admissibility of such testimony is; “Doesit tend to prove what the testimony was?” (Stanley v. Whitney, 47 Barb., 586; Strong v. Dean, 55 Id., 337; Clark v. Smith, 46 Id., 30; Barrett v. Carter, 3 Lans., 68). The successive amendments of this section have made it more and more exclusive (Van Alstyne v. Van Alstyne, 38 N. Y., 375; Kerr v. McGuire, 38 N. Y., 446; S. C., 38 How. Pr., 27; Angevine v. Angevine, 48 Barb., 417, directly in point. See also, Hatch v. Peugnet, 64 Bart., 189).
    II. There was no other testimony, as to value, than .that of a witness as to value in 1868,—the time of Spicer’s death,—to which exception was taken, and the jury must have speculated as to the value in 1863; and it can not be certain that defendant was not prejudiced by this evidence (47 N. Y, 186 ; 1 Id., 519 ; 4 Abb. Ct. App. Dec., 621).
    
    III. The exception to the denial of the defendant’s motion for judgment was well taken. The claim that the plaintiff could be dowable of the land of three husbands, or of two, all living at the same time, from neither of whom had she been divorced, is at war with the whole theory and body of the law of real estate, common and statute. The section of the statute (Rev. 8tat., part 2, ch. 8, title 1, art. 1, § 5), making subsequent marriage void only from the time of a decree, can not according to well settled rules of construction, be held to warrant such a deviation from and violation of settled principles of law as is claimed here. It was enacted for a special purpose, and can not be extended beyond such purpose. Unquestionably, plaintiff was, and is dowable of the lands of Miller. Her marriage with him is in full force, therefore, she could not be dowable of the land of John Spicer. The subsequent section of the statute (§ 33) shows that it was not contemplated by the legislature, that the party having such former husband or wife living, should acquire by such subsequent marriage the rights pertaining to one free from objection, because by such section (33), the children of such subsequent voidable marriage are permitted to succeed in the same manner as legitimate children, to the -real and personal property of the parent, who at the time of the marriage, was competent to contract. The effect of sustaining plaintiff's claim is, that while any children that might have been born of her marriage with John Spicer, could not succeed to any real or personal property she might own, because of her incompetency to contract; yet, she herself, through whose misconduct or fault in contracting the marriage, such innocent children would so suffer, can have all the rights of property pertaining to a marriage free from obstacle, objection, or doubt. Such a result shocks the moral sense, and shows conclusively that it could not have been intended. Chancellor Kent says (vol. 4 Oom., p. 35): ‘1 This humane provision of the common law (dower) was intended for the sure and competent sustenance of the widow, and the better nurture and education of her children. A woman can not be endowed unless her marriage was a' valid and unimpeachable 
      one. She can not acquire a dower-right from a voidable marriage. No case can be found where dower was allowed upon such marriage. In White v. Lowe (1 Redfield, 377), letters of administration only were granted. In Cropsey v. McKinney (30 Barb., 47), the controversy was between assignees of the wife, and assign - ees of the husband under a voidable marriage. The latter were successful. Such husband was the party competent to contract the marriage. At the close of the opinion in this case, when speaking of the children of the marriage, there is a significant hesitation and an express refusal to determine as to the rights of such children. These cases are of a surrogate and of a single judge, and not authoritative. Valleau v. Valleau (6 Paige, 207), simply decides that in case of such subsequent marriage, the first husband can not procure a divorce on the ground of adultery, and in no wise touches the question under examination. Wherever any suggestion can be found as to dower attaching upon voidable marriages, i. e., to a wife de facto,—dissoluble marriages are meant, i. <?., where divorces may be obtained upon some ground not affecting the original validity'of the marriage. This court was a competent court, and this case the proper case in which to adjudge the alleged marriage with John Spicer, void. The action is by one of the parties to such marriage, and against the immediate successor and representative of the other party to such marriage, i. e., John Spicer. Such marriage is the foundation of this action. It is directly averred, and put in issue, and if not properly adjudicable here, it is difficult to imagine in what action, and between what parties it could be. John Spicer is dead, and Miller is in no wise connected with the defendant, or the property or claim in question. Kerr v. Kerr (41 N. Y., 272), was a proceeding before the surrogate. The parties were two women, each claiming to be the widow of the intestate, and in that case a marriage was adjudged null and void, because, at the time of Us occurrence, the intestate had a wife livingIf, in this case a specific adjudication of the nullity of the marriage was not proper, the facts establishing such nullity all appeared unquestioned, and being destructive of the foundation of plaintiff’s claim, it was competent and proper for the court to reject such claim. In this action the court did in effect adjudicate upon and nulhfy the marriage of the plaintiff with Jared W. Bell, because of, and upon evidence that, he had a former wife living when he married plaintiff. If this court was competent in this action, to thus overcome and destroy the defense, based upon the marriage with Bell, surely it is equally competent to destroy the claim of the plaintiff, based upon her alleged marriage with John Spicer, at a time when, as conclusively shown, she had a former husband (Miller) living, and therefore, open to the same objection as she availed herself of to get rid of her marriage with Bell. There can be no distinction. In Appleton v. Warner (51 Barb., 272), the N. Y. general term held that when it was shown that a party had a husband or wife living at the time of contracting a subsequent marriage, the court must adjudge such subsequent marriage void.
    
      Bailey & Berry, for plaintiff respondent.
    I. The question asked the plaintiff, “ Now, when did you marry John Spicer?” was competent, for the plaintiff could testify as to her marriage, the proof of marriage in this State being made by the admissions or declarations of the parties themselves, by their reception as man and wife, or by common reputation, and the wife is competent to testify as to a private marriage if denied by the defendant (2 Greenl. Ev., § 461; Fenton v. Reed, 4 Johns., 52; Jackson v. Claw, 18 Id., 346; O’Gara v. Eisenlohr, 38 N. Y., 296; Bissell v. Bissell, 7 Abb. 
      
      Pr. N. S., 16; S. C., 55 Barb., 325 ; Matthews' Pres. Ev., 283).
    II. The objection is not sustained by section 399 of the Code, as the subject-matter of the question does not bring it within it, neither is this plantiff, or this action affected by its provisions, (a.) The action is not against any executor, administrator, &c., or any representative, as such, of the estate of John Spicer, deceased, (b.) The defendant in this action is not an assignee, or in any way the legal representative of the deceased, as within the provisions of the Code, section 399, but is solely the grantee of the plaintiff and the deceased for a consideration agreed upon at the execution of the deeds, 'and for which consideration this action is brought, (e.) The defendant is not within the provision of the Code, so as to exclude the question, neither can it be claimed that the plaintiff is, although her right of action accrued by her relations with the deceased. She, .as dowress, is not a representative of the deceased, through whom she claims, within the meaning of section 399 (McCrary v. McCrary, 12 Abb. Pr., 1).
    III. The question as to the contract made between the plaintiff and defendant, in presence of and by consent of. John Spicer, deceased, was properly admitted. 1. On the ground, as stated by the court, to show the contract between the plaintiff and the defendant. 2. The question was admissible, even to show the conversation had by defendant with the deceased, although the defendant might have been a representative of the deceased, within the meaning of the Code, as it was held in a case commenced by an administrator, that the party to an action was not debarred from testifying with regard to a conversation heard by him, between the deceased and a third person (Simmons v. Sisson, 26 N. Y., 264 ; Lobdell v. Lobdell, 36 Id. 334).
    IY. The marriage to John Spicer.was valid, under the revised statutes (Valleau v. Valleau, 6 Paige, 207; Griffin v. Banks, 34 How. Pr., 316; Cropsey v. McKinney, 30 Barb., 47),
    
      
       Compare Anonymous, 1 i AT>T>. Pr. R. 8., 171; also, 9 Alb. 'L. J., 5, 25.
    
    
      
       Compare, beside cases cited by counsel, Clarke v. Smith, 46 Barb., 30; Dyer v. Dyer, 48 Id., 190; Stanley v. Whitney, 47 Id., 586; Keator v. Dimmick, 46 Id., 158; Van Tuyl v. Van Tuyl, 8 Abb. Pr. N. S., 5; Dietrich’s Case, 1 Tuck., 129; Matter of Paige, 62 Barb., 476; Franklin v. Pinckney, 18 Abb. Pr., 186; Timon v. Claffy, 45 Barb., 488.
    
    
      
      But compare People v. Gonzalez, 35 N. Y., 49.
    
   By the Cotjkt.

Beyholds, J.

The plaintiff in this action was married to Hugh Miller, about the year 1839. As she claims, he, shortly after that, deserted her, and since about a year subsequent to the marriage, she had neither seen him, nor heard of his being alive up to the time of the trial of this action, which occurred in January, 1873.

Upon the trial, however, Miller appeared, and was-sworn as a witness for the defendant. Leaving out of view the plaintiff’s marriage with Bell, in 1850, it appears from her testimony that she was married to John Spicer, in June, 1853. He died in 1868.

In 1863, John Spicer, by deeds, in which the plaintiff as his wife joined, conveyed to the defendant certain real estate in the city of New York, and the plaintiff alleges that in consideration of such transfer, the defendant promised to pay to her in the event of the death of said John Spicer, “ an amount equal to her dower, interest, and right of dower,” in the property.

Upon this alleged promise the action was brought, and for the value of such dower-right, as estimated by the jury, the verdict in favor of the plaintiff, was rendered.

The first question which arises, is whether the plaintiff would have been entitled to dower, in lands of which John Spicer might have died seized.

Upon a careful examination of the statute, I have cometo a conclusion, adverse to the plaintiff, upon this point. By section 5, of article 1, title 1, 'ch. 8, part 3 of the revised statutes (3 Rev. 8tat., 139), it is enacted that no second1 or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless the former marriage shall have been annulled or dissolved from, some cause other than the adultery of such person, or unless such former husband or wife shall have been finally sentenced to imprisonment for life ; and that every marriage contracted in violation of such provisions, shall be absolutely void, except in the case provided for in the next section.

That section is as follows : “ Sec. 6. If any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living, during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.”

Article 2, of the same title, section 20, provides that the court “may by a sentence of nullity, declare void the marriage contract,” for the reason “that the former husband or wife of one of the parties was living, and that the marriage with such former husband or wife was then in force.” A subsequent section (22) of the same article declares that “when a marriage is sought to be annulled on the ground that the former husband or wife of one of the parties was living, it maybe declared void on the application of either of the parties during the lifetime of the other, or upon the application of such former husband or wife. ”

The court, in pursuance of the provisions above recited, is not authorized to dissolve the last marriage, and does not undertake to do so, but simply to declare it to be illegal and void ; it pronounces it null, for the law does not contemplate the possibility of one being the lawful husband or wife of two persons at the same time.

In this case, the marriage between Hugh Miller and the plaintiff has never been dissolved, and she, being his wife, was incapable ‘of contracting a valid marriage with John Spicer.

Such "a marriage being invalid, it can have no legal effect beyond what the statute gives it. What, then is meant by the provision that it shall not be void, or according to the section first cited, “absolutely void,” until a “sentence of nullity” is pronounced against it %

A further reference to the statute will show. The next section (§ 23, same article) provides that “ when it shall appear and be so declared that such subsequent marriage was contracted in good faith and with full belief of the parties that the former husband or wife was dead, the issue of such marriage born or begotten before its nullity shall be declared, shall be entitled to succeed in the same manner as legitimate children, to the real and personal estate of the parent, who, at the time of the marriage was competent to contract, and the issue so entitled shall be specified in the sentence of nullity.

A very high authority has spoken of this as legitimatizing the children. 'That is not quite accurate. If they were rendered legitimate, they could inherit from both parents, but they are only permitíed to take in the same manner as legitimate children, from the parent only who was competent to contract, be it father or mother. Here is a special provision in favor of the children, and that a limited one. The care manifested in making the provision, the nature of the limitation, and the absence of any other provision as to property, shows almost conclusively to my mind that the legislature did not intend to confer any rights of property as arising from the marriage, upon the party who was not “ competent to contract” it.

The legislature, by a further enactment shows what effect it meant to give to such marriage, in favor of the party who,' although incapable of contracting a valid marriage, might "in good faith undertake to do so.

By section 9, article 2, title 5, ch. 1, of part 4, Re?). Slat., persons contracting a subsequent marriage, under the circumstances claimed in favor of the plaintiff, are exempted from the penal consequences of bigamy. The marriage is none the less illegal.

The law confers upon the issue a certain limited capacity to succeed to property ; and to the party who would otherwise be liable, it extends immunity from punishment. It affords to such party a shield but not a sword. It follows, I think, that as the plaintiff was never the lawful wife of John Spicer, she was never dowable of his lands. The text books say, in regard to the requisites of dower, “ the marriage must be a legal one, though, if voidable only and not void, the wife will be entitled to dower, if it be not dissolved during the lifetime of the husband” (See 1 Washburn on Heal Property, 108, 3 ed). As instances of marriages voidable only, they give the case of parties contracting marriage at an earlier age than that justified by the law of the country or state, and of the intermarriage of an aunt and nephew in England, where such a marriage was voidable, but not. void. 1 apprehend the marriage under consideration was not “ voidable only” in any such sense. Such a marriage is absolutely void ab. initio at common law. 1 Scribner on Dower, 100, says, “a second marriage, while a former husband or wife is living, is ipso facto void without any divorce, as well by the spiritual as the common law. In the United States, this rule has been applied in several cases, involving the right of dower.” In whatever respects our statutes may have changed this rule, I have endeavored to show that it confers no right of property through a marriage, one of the parties to which is under the disability of a prior marriage undetermined, except such as have been specified. Even if no sentence of nullity ever be pronounced, yet the issue of such a marriage can not inherit from the father, for it is only “ when it shall appear, and be so decreed, that such subsequent marriage was contracted in good faith,” &c., that the statute gives the right to succeed to the property of the parent who was “competent to contract.”

When the court declares the marriage void the children are provided for by decree, and “ the issue so entitled shall be specified in the sentence of nullity.”

If the plaintiff’s claim is valid, we should be led to the conclusion that incase of a marriage, which is liable to be declared void, because the woman was already the wife of another man, if no one invokes the judgment of the court before the man dies, the widow (so called), may claim her dower on the ground that she was legally his wife, while her own children by him, would be excluded on the ground of illegitimacy, from any inheritance in the very same property out of which she is thus endowed. It seems to me, the statute has not provided for such an astonishing result.

This is to me a new question. I find no case in which it has arisen, at least directly, nor do the researches of the counsel seem to have been more successful.

The author of the work on dower, above cited, seems to think that under our statute, such a marriage as we have, been considering, is valid, as a prerequisite of dower, until annulled (yol. 1, pp. Ill, 112, 124).

With great respect, I find myself unable to come to the same conclusion.

I am inclined to think, however, that upon the plaintiff’s version of the transaction, which must be taken to have been sustained by the jury, the defendant, is estopped from denying the plaintiff’s right to recover what would have been the amount of her dower in the premises in question, if John Spicer had died seized of such premises, leaving her his lawful widow. Not, as claimed by plaintiff’s counsel, because he accepted a deed in which she was described as the wife of John Spicer, for “there is no general or inflexible principle which estops the grantee from showing that the grantor has no title, or none which is capable of being passed by the grant. The mere acceptance of a conveyance does not prevent him from showing want of estate in the grantor of the land conveyed ” (Herman on Estoppel, 301). This position seems to be maintained by the authorities in this State.

But according to the plaintiff’s statement, John Spicer was about to make a testamentary disposition of this very property in her favor. She was capable of taking it as his devisee. At this time the defendant interfered and procured the conveyance of the premises to himself upon the promise that he would pay her an amount equal to Tier dower upon the death of John. This, perhaps, might fairly be said to mean that he would pay her such an amount as she, if entitled to dower in the lands might claim, but I prefer to rest my conclusions on the ground, that having diverted the property from its course to her by will, by force of his promise, he is estopped from denying the validity of that promise while continuing to hold and enjoy its fruits.

I think, therefore, she may maintain this action upon a promise given, and accepted, and acted upon, as she swears this was, though she would not, as the widow of John Spicer, have been entitled to admeasurement of dower.

We come then to inquire whether there is sufficient evidence to sustain the finding of the jury as to the amount of the plaintiff’s recovery. The court directed the jury to proceed on thebasis of the value of the property at the time of the alienation, namely, 1863. It was conceded by the plaintiff that John Spicer owned in his own right only one undivided half of the premises, holding the other half in trust for George. What was the value of the half belonging to John ?

The jury evidently assumed it. to be twenty-nine thousand dollars, as upon that basis the precise result shown by the veidict, is attained.

But so far as I can see, there is not sufficient evidence to support such assumption. It is true, the aggregate amount of the consideration named in the three deeds is twenty-nine thousand dollars, but I find nothing in the case to show that that sum was in fact the value, or was agreed upon or regarded by the parties as the value of the property, above the incumbrances ; certainly not as the value of one-half.

The consideration clauses in the deeds to defendant seem to have been taken from the corresponding deeds to John; for instance, we find that the premises on the north side of Fifty-second-street were conveyed by John M. Bruce and wife to John Spicer, for an expressed consideration of nine thousand dollars, only a year before the conveyance to defendant, and the consideration named in the deed of the same premises to defendant, is also nine thousand dollars, although John Spicer, and plaintiff, as his wife, gave back mortgages on the same premises to Bruce, for nine thousand dollars in the aggregate, which mortgages were afterwards (in 1864) assigned to defendant. Surely, in the absence of any testimony as to value in 1863, or of any agreement of parties, the copying the consideration from one deed into another, without regard to intermediate incumbrances, or the distinction between a half and a whole interest, can afford no solid ground on which to base a verdict.

Since the argument, plaintiff’s counsel has submitted an additional point on this subject, claiming aid from certain admissions in the answer.

But I see nothing there to help us out of this difficulty. The answer, as I construe it, merely admits that the complaint correctly set out the contents of the deeds in certain respects, not that the consideration expressed in the deeds was the actual consideration of the conveyance 5 and there is no admission of any specific advance in value so as to dispense with proof on that point.

If I am correct in the conclusion at which I have arrived, the judgment should be reversed, and a new trial granted. It is unnecessary to examine any of the other questions presented on the argument, though several of them would otherwise deserve a serious and careful consideration.

Judgment reversed, and a new trial granted. Costs to abide the event.

Heilson, J., concurred.  