
    James J. Smart vs. Jane Whaley.
    J. W. filed her petition for dower-in the lands of her alleged husband G. W.; J. £>,, the grantee of her husband, contested her right of dower, on the ground that she was not the wife of G. W.; on the trial of the petition it was proved that J. W1 was married to G. W., in 1814 ; and that, in 1815, M. F. who had been married in 1809 to G. W. was alive ; G. W. and J. W. after their intermarriage  lived together as man and wife for twenty-five years, until the death of G. W,: Held, that the wife of G. W. being alive when he married J. W., the latter marriage was absolutely null, and J. W. not his wife, and therefore not entitled to dower in his lands.
    In error from the probate court of Pike county; Hon. Christian Hoover, judge.
    Jane Whaley filed her petition in the probate court of Pike county, for an allotment of dower out of certain lands; representing herself as the widow of George Whaley, who died seised thereof. James J. Smart, the tenant in possession, filed a petition in the same court, alleging that he was the owner and possessor of said lands, by purchase from the grantee of said George Whaley, and that Jane Whaley was not his lawful wife, whereupon by leave of the court he was admitted to defend the suit, and filed his answer to the petition; in which he denied that the petitioner was ever the lawful wife of George Whaley, alleging that the said George Whaley was lawfully married to one Margaret Field, in the year 1810, in the state of Tennessee, and who was living and undivorced at the time the petitioner married Whaley.
    Michael McNulty, on the part of the petitioner, testified that he knew the petitioner and George Whaley had lived together as man and wife for twenty-five or thirty years, but that during a portion of that period they had lived separate.
    
      The defendant then proved by Louisa Quinn, that about the year 1810, George Whaley lived with .one Margaret, whose maiden name was Field, as man and wife, and that common reputation said they had been married, and that they were received as man and wife in the community in which they lived; that said Margaret was living in the state of Tennessee in the latter part of the year 1814, or the beginning of the year 1815.
    Mary Wilson and Sarah Richmond testified that they knew George Whaley married Margaret Field in Tennessee in 1809 or 1810, and that she was living in 1811 when they left that state, and they had never heard of her death. Mrs. Jane Bigner testified that she knew George Whaley, and Margaret Field, and lived in the neighborhood when they were married, in Tennessee; was not present at the ceremony, but that the parties lived at said Margaret’s father’s, asman and wife; that this was before the marriage of George Whaley to the demandant, which witness stated took place in the county of Amite, in this state, in the month of February, 1814; that the petitioner admitted to witness, about five years since and in the lifetime of Whaley, that she was not his lawful wife, and that Whaley had a lawful wife then living.
    William Woodall testified, that shortly after the marriage between petitioner and George Whaley, and during an angry controversy between them, which witness was trying to appease, he heard petitioner say that she was not the lawful wife of Whaley, and that she knew before and at the time of her marriage with him that he had a lawful wife living. This was all the testimony. The cause was argued and submitted, and the court took the same under advisement, and at the ensuing term decreed that dower be allotted to the petitioner in the usual form; and the defendant appealed from this decree.
    
      W. P. Harris, for appellant.
    The grounds on which the claim to dower is resisted in this case are sufficient. In order to entitle a woman to dower she must answer- the description of a lawful wife. Roper on Husband and Wife, 203.
    
      The fact, that a prior marriage had taken place between George Whaley and Margaret Field, and that the latter was living at the time of the marriage to the petitioner, are clearly established. This prior marriage having taken place out of this state, the defendant below was relieved from the necessity of producing the certificate of the marriage, as foreign marriages are not necessarily provable by such evidence. This principle is well established by the same authority above quoted.
    The witness Quinn proves that Margaret Field was living at the date of the second marriage, and after that period; and the same witness, together with two others, from personal knowledge, as well as from general reputation, prove that Whaley married Margaret Field in 1809 or 1810, in the state of Tennessee.
    A question arises upon the case as stated, growing out of the decision in the case of Van BuskirJc v. Claw, 18 Johns. R. 348. The principle which that case decides is, that though the first wife was living at the date of the second marriage, yet after the lapse of seven years from the time the first wife was known to be living, and was last heard of, she will be presumed to be dead ; and subsequent continued cohabitation until the death of the husband will entitle the second wife to dower, on the presumption that a marriage in all respects legal took place after the seven years and presumptive death of the first wife, in analogy to the exceptions in the statute of bigamy.
    The facts were that Yan Buskirk cohabited with a woman, as man and wife, in 1779. In 1780 they separated. Six months after this separation he married another woman, with whom he continued to live as man and wife up to his death, a period of forty years, and had children, one of whom was thirty-seven years old. It was proved the last time the first wife was heard of was in 1783. On this state of facts the court held that the last wife was entitled to dower. It was admitted, however, by the court that the first marriage was not sufficiently proved. As this case will doubtless be relied on by the counsel for the appellee, it has been thought necessary to allude to it thus particularly, in order to point out the difference in point of fact, between that and the case at bar. In the present case it will be seen, that the only proof in reference to the seccihd marriage is that of witness McNulty, who said that twenty-five or thirty years since, George Whaley and petitioner lived togéther as man and wife; that they were separated part of that tihie. Other witnesses, prove declarations of the petitioner during that period that she was not the wife of George Whaley. There is no proof of continuing cohabitation up to the death of Getirgé Whaley. It is decided, in the caise above quoted, that separation after cohabitation, where there was no other evidence of marriage, rebutted the presumption of marriage. In the present case there was not' only a separation, but the parties by their own conduct and declarations conclusively destroyed all presumptions arising from cohabitation. Independent of this want of analogy between the two cases in that feature which is éssential to the application of the principle of the decision quoted, it can be shown that the presumptions indulged in that casé, if they can arise at all, arise only in criminal prosecutions. According to the views expressed by Lords Eldon and Redesdale, in 2 Dow. 45, where the connection is' provéd to be meretricious in its origin, as where it commenced in the lifetime of the first wife, this presumption is not allowed even in criminal prosecutions for bigamy, and for an obvious reason.- No presumption can prevail against the fact, that the second marriage took place while the first wife was living, because the crime is complete; and it is absurd to- say that in favor of innocence this presumption will be indulged when guilt is admitted. It is insisted that in the present instance the proof would have been sufficient to convict George Whaley of bigamy, as it is clearly shown that he married a second wife while the first was living. The exception in the statute of bigamy is, substantially, that if the second marriage takes place seven (five by our statute) years after the first wife was last heard of, or not known to the husband, it shall not amount to felony. This exception, however, as has been repeatedly held in the English courts', does not operate to render the second marriage valid, but extends only to the felony. Petersdorf’s Abr. tit. Marriage.
    
      In conclusion, therefore, it is urged, that as the connection between the petitioner and George Whaley was illegitimate in its origin, and no subsequent actual marriage proved, and as this connection was interrupted by separation and its legitimacy repeatedly denied by the petitioner, and as there is no proof that it actually subsisted at the death of George Whaley, all presumptions of marriage from mere cohabitation are destroyed. This conclusion is fully sustained by the facts in the case, and warranted by the principles of law applicable to it. The decision of the court below was therefore erroneous, and should be reversed.
    
      
       It did. not appear in the case when M. F. died, if at all.
    
   Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the probate court of Pike county.

Jane Whaley applied to the probate court for dower in certain real estate, alleging that she was the widow of George Whaley, deceased. The appellant filed his petition in the said probate court, setting forth that he was the owner and possessor of said real estate, by purchase from the grantee of said George Whaley, that said Jane was not the lawful wife of said George at the time of his decease, and praying to be made a party defendant to her application for dower in said real estate. Upon an order of said court, the appellant was made party defendant to the petition, and at the hearing, the following facts were disclosed by the evidence: That the said George Whaley was married to one Margaret Field, in the state of Tennessee, in the year 1809 or 1810, and that she was living in said state up to the last of the year 1814, or the first of the year 1815; that the said George Whaley was married to the appellee in the state of Mississippi in the month of February, of the year 1814; that the deceased and the appellee lived together as man and wife for twenty-five or thirty years, except a portion of the time, when they had separated; and that shortly after the marriage of the appellee with the said George, she acknowledged that she knew that she was not his lawful wife, and that she knew before, and at the time of her marriage, that the said George had a lawful wife living; and that very recently, she had acknowledged that she knew that she was not the lawful wife of said George, because he had a lawful wife then living.

The probate court allowed the application for dower, whereupon the appellant brought the case into this court.

The marriage of George Whaley to Margaret Field seems to be sufficiently established by the evidence, and also that she was living at the period when the said George married the appellee in this state. In such a state of case the second marriage was null and void, and the appellee was not the lawful wife of the said George Whaley at the time of his death, and consequently was not entitled to dower in his estate.

If the validity of the marriage should hereafter be brought in question in any mode, the decision of this case in the probate court should not prejudice the rights of parties.

Judgment reversed.  