
    In the Matter of the Application of Henry A. Hinman, Respondent, for the Removal of Vena M. Hinman, Appellant, from Office as Administratrix, etc., of Charles N. Hinman, Deceased.
    Third Department,
    November 15, 1911.
    Husband and wife — presumption. of marriage, from cohabitation — assumption as to the manner in which a marriage was contracted — common-law marriage's in New York State invalid between 1901 and 1907 — effect of amendment of 1907 to the Domestic Relations Law.
    The presumption of marriage arising from a cohabitation apparently matrimonial does not assume that the marriage took place at any particular place, manner or time; it means that a legal marriage éxisted.
    The provisions of the Domestic Relations Law relating to marriage do not constitute a rule of evidence or annul the ordinary, presumption of law applicable thereto.
    The court cannot assume that a marriage which took place in the State of New York after January 1, 1903, did not take place in the manner provided for by section 7 of the Domestic Relations Law as amended by chapter 743 of the Laws of 1907, which provides that that chapter shall not affect marriages among “ Friends ” or Quakers,”, or marriages among people of any other denomination having as such any particular way of solemnizing marriages. , • ■
    During the operation of section 19 of the Domestic Relations Law, as the same was added to that law by chapter 839 of the Laws, of 1901, a marriage claimed to have been solemnized in the State of New York in a mode other than the statutory mode, and not pursuant to the regiila- . tions of a religious sect to which the parties belonged, is invalid.
    
      It seems, however, that the effect of the amendment made to the Domestic Relations Law by chapter 743 of the Laws of 1907 was to recognize the validity of marriages contracted otherwise than in the form prescribed by the statute.' • , '
    Smith, P. J., dissented.
    Appeal by Vena M. Hinman from a decree of the Surrogate’s Court of the county of Broome, entered in said Surrogate’s Court on the 12th day of October, 1910, vacating an order ajipointing her administratrix of the estate of Charles N. Hinman, deceased, with notice of an intention to bring up for review certain intermediate orders.
    Hinman, Howard & Kattell [Harvey D. Hinman of counsel], for the appellant.
    
      Wilber & Yetter [Harry A. Yetter of counsel], for the respondent.
   Kellogg, J.:

The presumption of marriage from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. * * * '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.* * * The presumption could be negatived only by disproving every reasonable possibility.' ” (Hynes v. McDermott, 91 N. Y. 451, 459.)

The evidence shows conclusively that the parties lived, together as husband and wife for many years in the actual belief that they were married, and were so recognized by their friends and neighbors. It is practically conceded that a marriage at common law is shown, but we are asked to find that it took place between January 1,1902, and January 1,1908, when it is claimed that a common-law marriage in this State was not permissible. It is sought to reverse • the presumption" and to assume that the marriage took place at a time, place and manner which makes it illegal.

The presumption of marriage- does not assume that it took place at any particular place, manner or time; it means that a legal marriage existed.

The husband is dead, the wife is an incompetent witness to prove the time, place or manner of marriage. If he were living and she were a competent witness they might be able to prove that the marriage took place in all respects according to the laws of this State, but they are necessarily silent. The marriage does not fail for that reason. The provisions of the Domestic Relations Law relating to marriage are not a rule of evidence and do not annul the ordinary presumption of law applicable thereto. Section 19 of that law did not attempt to visit the ban of invalidity on any contract -of marriage except upon one claimed to have been contracted otherwise than as mentioned in the statute. That statute is a restraint upon the natural common-law right of parties to make a contract of marriage, and must have a reasonable construction, but is not to be extended beyond its fair terms. It has no reference to and does not destroy the ordinary presumption of marriage. While that law was in force in all its terms it was still permissible, when the facts required, to presume a legal marriage, although none was actually proved, which conformed to the statutory requirements. Several considerations invite the application of the presumption to this case. "

It is uncontradicted that in the fall of 1901 the parties visited the appellant’s mother, father and sister at Equinunk, Penn.' He was introduced as her husband and occupied a room with her.. Other evidence shows their acts and their claim to be married prior to January, 1902. They were in fact living in the house with his mother. The introduction of evidence' tending to throw a doubt on their relations at that time does not meet the case in view of their lives and conduct and the practical concession that a common-law marriage took place at some time. The relation of the parties from that time down to the death of the husband, aided by the presumption, is alone sufficient to determine this case in her favor. There are other facts upon which the presumption comfortably rests and which assure her position. They were out of the State at different times in Pennsylvania and New Jersey, and we cannot assume "that the statutory law of those States is the same as for a timé existed in this State. It is provided by section 7 of the Domestic Relations Law, as renumbered from section 12 and amended by chapter 742 of the Laws of 1907, which chapter is alleged to make common-law marriages invalid, that the provisions of that chapter, so Jar as they relate to the manner of solemnizing marriages, shall not affect marriages among the people called Friends or Quakers, nor marriages among the people of any other denominations having as such any particular mode of solemnizing marriages, but such marriages must be solemnized in the manner theretofore used and practiced in their respective societies or- denominations, and that marriages so solemnized shall be as valid as if this article had not been enacted. If the marriage took place in this State after January 1,1902, we cannot assume that it did not take place in the manner provided for in this section.

Irrespective of the question whether from January 1, 1902, to the death of her husband on September 17, 1908, common-law marriage might take place in this State, the evidence shows that the parties were right in believing that they were married, and the finding that there was no marriage is in conflict with the law and the evidence in the case.

Counsel have ably argued the question whether a common-law marriage since the statute of 1907 is permissible in this State. The surrogate evidently believed it was not. The matter is of public interest, and although not necessary to a decision of -the case, it may not be unwise to give it consideration. Sections 10 to 18, constituting article 2 of the former Domestic Relations Law (Laws of 1896, chap. 272), recognized marriage as a civil contract depending for its validity upon the consent of parties capable in law of making a contract, and permitted such consent to be shown by common-law evidence. ' It did, however, provide for a manner of solemnizing marriages in order to have them authenticated and registered pursuant ¿to that statute. Chapter 339 of the Laws of 1901 amended that article. From section 11 of the former law it omitted the words “for the purpose of being registered and authenticated as prescribed by this article,” leaving that section to read that a marriage must be solemnized in one of the ways stated in its four subdivisions, and incorporated into section 10 of the law a provision that a lawful marriage contracted in the manner and pursuant to the regulations of a religious society to which either party belongs is as valid as if the article had not been enacted, and it added to the law section 19 which declared that no marriage claimed to have been contracted on or after January 1, 1902, within this'State, otherwise than in that article provided, should be valid for any purpose whatever, provided that no such marriage shall be deemed invalid by want of authority in any person solemnizing the same under subdivisions 1, 2,

3 and 4 of section 11, if consummated with the full belief on the part of either of the contracting parties that they were lawfully joined in marriage, or on account of any mistake in the date or place of marriage or in the residence of either of the contracting parties in case of a marriage solemnized under subdivision 4 of said section 11. It must be conceded that during the lifetime of section 19 a marriage claimed to have been solemnized in the State in other than the statutory mode' and not pursuant to the regulations of a religious society to which the parties belonged was invalid. The necessity of section 19 to require ceremonial marriages is apparent from the • general rule that a statutory provision directing how marriages shall - be performed is. construed by the courts as merely directory and does-not affect-the validity of a-marriage otherwise contracted unless there is a provision of the law asserting such invalidity. (Meister v. Moore, 96 U. S. 76.)

Chapter 742 of the Laws of 19Ó7 again- amended the Domestic Relations Law by striking from section 10, as renumbered section 5, the provision excepting from the provisions of the article marriages contracted according to the regulations of a religious society to which either party belongs, and incorporated into section 7, which renumbered and amended section 12, a similar and broader exception, and expressly repealed section 19 added by the Laws of 1901. Having thus stricken from the' law every provision which declared other marriages invalid, the intention. evidently was to recognize the validity of other marriages according to the well-known rule mentioned in Meister v. Moore (supra). Aside from that rule the legislative intention is clear from the act itself. Section 19 had a saving, clause by which a marriage was recognized as legal if the parties -were mistaken about the official character of the person solemnizing it, ignoring mistakes in names, dates-and places in the record. It cannot be that the Legislature meapt to repeal this saving clause and make such excepted cases illegal. I think the repeal shows thé. changed public policy'of the State and that the Legislature became satisfied that the-provision making marriages void unless performed in a particular manner was against the public good and public morals and that the repeal was intended to and did make common-law marriages valid in this State.

We have not overlooked the fact that subdivision 4 of section 11 of the Domestic Relations Law (as amd. by Laws of 1901, chap. 339), which related to a written contract of marriage and. required it to be acknowledged in the same manner as is required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded, was-by the act of 1907 renumbered as section 6 and amended. The. amendment added a proviso that the acknowledgment, “must, -in order to be valid,” be before a jiidge of a court of record. It also required that the contract he recorded within six months with the county clerk instead of being filed with the town or city clerk.

If the Legislature intended by the general clause of section 11, as is claimed, to make all marriages void which were not solemnized in the manner mentioned in one of its four subdivisions, then it was clearly unnecessary to insert the words quoted in subdivision ‘4, which provision in that subdivision can have no effect upon the other subdivisions. If the amendment of subdivision 4 was deemed necessary in order to make a written contract not according to its terms void, then it clearly was the legislative understanding that the other subdivisions of the section did not carry invalidity with -them. The words quoted only relate to the acknowledgment of the paper and do not relate to a failure to have it recorded as required by the next sentence of the amendment. The section, as amended, until we get to the proviso, permits the acknowledgment to be taken before any officer qualified to take an acknowledgment of conveyances for record. Instead of'rewriting that sentence the Legislature added the proviso, which was undoubtedly intended- to mean that notwithstanding the general language immediately preceding the contract was not in compliance with the statute unless acknowledged before, a judge of a court of record.

The order should be reversed upon the law and the facts, with costs, and the motion to remove the appellant as administratrix denied, with costs.

All concurred, Houghton, J., concurring in result, except Smith, P. J., dissenting.

Decree and orders reversed on law and facts, with costs, and application to remove administratrix denied.  