
    Odd Fellows' Beneficial Association of Rhode Island vs. Maria H. Carpenter et als.
    
    After it failure to prove a ceremonial marriage, the claim was made before this court that the parties in question had been married per verba de presentí. It appeared that they had cohabited for some months; it did not appear that they had been generally reputed husband and wife; it did appear that the man in his last will spoke of the woman as his wife, but it also appeared that, owing to his relations to her, he had been on bad terms with his children.
    Meld, that a marriage per verba de presentí was not proven.
    Whether such a marriage, if proven, would be valid in Rhode Island is not decided.
    Bill of Interpleader.
    
      May 28, 1892.
   Tillinghast, J.

The respondent, Maria H. Carpenter, claims that she is the widow of John A. Carpenter, deceased, and as such is entitled to the fund in dispute. And the only issue of fact submitted to the court at the trial was, whether she was his widow. In support of her claim, she testified that she kept house for the deceased from October 1, 1888, till February, 1890; that her first husband died in December, 1888; that she and the deceased shortly afterwards agreed to be married to each other, and in pursuance thereof, on the 13th of February, 1889, went to Fall River, Massachusetts, where a ceremonial marriage was solemnized by a clergyman authorized to solemnize marriages, or before a person who was represented by the deceased to be so authorized, and whom she believed was so authorized. She did not produce any certificate of marriage, or any record evidence thereof, or any witness to the same. She could not give the name of the clergyman who performed the ceremony, nor could she tell upon what street, or in what part of said city, he resided. She further testified that after said marriage she continued to live with the deceased as his wife till his death, which • occurred on August 3, 1889. Evidence was also offered that the deceased, on-one or more occasions, spoke of the respondent as his wife, one witness testifying that he introduced her to him as such; and also that they lived together, for a short time before the death of said John, apparently as husband and wife. It further appeared that the deceased made a will, in which he referred to the respondent as his wife, and bequeathed to her all of his property, and constituted her his sole executrix.

On the other hand, the respondents, the children of the said John A. Carpenter, offered evidence to the effect that in March, 1889, the deceased stated to one of the complainants’ officers that he had no wife, and that on being visited during his illness, in the same month, by a member of the order, he spoke of the respondent as “ Maria, a woman that keeps house for me.” Also that the deceased on one occasion, upon being told that it was reported that he was married, replied that “ You must n’t believe everything you hear.” Upon this state of the proof, the court was not satisfied that any ceremonial marriage between the deceased and the respondent ever took place, and so decided. The respondent now contends that, notwithstanding her failure to prove a ceremonial marriage as set up by her, yet that she has proved a common law marriage, knowii as a marriage per verba de presentí, and hence that she is the widow of said John A. Carpenter, and entitled to said fund.

The question as to the validity of such a marriage has never been decided by this court, nor do we find it necessary to decide it in this case. For, even assuming that such a marriage is valid in this State, yet we are not satisfied that the proof submitted establishes the existence thereof.

Leaving out of account the testimony of the respondent as to a ceremonial marriage, which has already been passed upon by the court, there remains the evidence that, being a married woman, she lived with the deceased as his housekeeper from October, 1888, till the death of her husband in December, 1888, and that thereafterwards, and until August 3, 1889, she continued to live with the deceased in some capacity; that to two or three persons he introduced her or spoke of her as his wife, while to others he denied that he had a wife, and spoke of her as his housekeeper; and finally that he referred to her in his will dated July 19, 1889, as his wife, making her his sole legatee and executrix.

This evidence, taken as a whole, and considered as favorably in behalf of the respondent as the circumstances will permit, shows the fact of cohabitation between the parties, for a period of about five months, contradictory statements made by the deceased as to whether the respondent was his wife, and a will made by him in which he recognized her as his wife.

We do not feel that, upon such proof as this, we should be warranted in holding that even a common law marriage was established.

In order to constitute a marriage per verba de presentí, the parties must agree to become husband and wife presently. The consent which is the foundation and essence of the contract must be mutual and given at the same time, and it must not be attended by an agreement that some intervening thing shall be done before the marriage takes effect, or that it be publicly solemnized. That is to say, it must contemplate a present assumption of the marriage status, in distinction from a mere future union. Lord Brougham in The Queen v. Millis, 10 Cl. & F. 534, 708, 730; Clark v. Field, 13 Vt. 460. Being a civil contract, in so far, at any rate, as the entering into the marriage relation is concerned, it may be effected by any words in the present time without regard to form. Hantz v. Sealy, 6 Binn. 405, 2 Kent Comment. 7th ed. 51. And like other civil contracts it may doubtless be proved by circumstantial as well as by direct and positive evidence. Thus, as stated by Chancellor Kent: “ The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy or adultery, when actual proof of the marriage is required.”

But, while this is so, it does not follow that courts will infer the existence of such a marriage from loose and inconclusive evidence, especially where, as here, such a marriage is in violation of the enal law of the State, which it is not to be presumed the parties ave violated. See Pub. Stat. R. I. cap. 163, § 14.

Proof of reputation, and continuous cohabitation for a long eriod of time, has been held sufficient to establish a marriage for ivil purposes; while proof of cohabitation alone has generally jeen held to be insufficient. Commonwealth v. Stump, 53 Pa. St. 132, 135.

The cases cited by the counsel for the respondent, in support of is contention as to the sufficiency of the evidence of cohabitation o establish a common law marriage, are each of them cases in hich the evidence was much stronger than in the case at bar. Thus, in Yates v. Houston, 3 Texas, 433, the parties had cohabited for a period of five years; three children had been born of the ~nion, and they had been officially recognized as husband and Te, and so classed by the census of the colony where they lived, n Fenton v. Reed, 4 Johns. Rep. 51, the parties had cohabited ogether as husband and wife, under the reputation and understanding that they were such, from 1800 to 1806, whén the husband died; and the wife during this time had sustained a good character in society. In Rose v. Clark, 8 Paige Ch. 574, the parties lived together as husband and wife, for more than seven years, having children, and holding themselves out to the world as husband and wife, and being regarded by the community as such. In Donnelly v. Donnelly’s Heirs, 8 B. Mon. 113, the proof showed that the parties had cohabited as husband and wife, under the reputation that they were such, for twenty years, and had raised a family of children. In O’Gara v. Eisenlohr, 38 N. Y. 296, the parties lived and' cohabited together for seven years, during all of which time they were received in the communities where they lived as man and wife, and were so regarded and understood by all their neighbors. See, also, Hicks v. Cochran, 4 Edwards Ch. 107.

In the case at bar, while there is proof of cohabitation for a few months, it does not appear when it commenced, nor does it appear that the parties ever obtained the reputation of being husbair and wife. The fact that the deceased referred to tbe responden as his wife in his will, and made her his sole legatee and execr trix, is not, in our judgment, entitled to much weight, in view c the evidence, which was submitted at the trial, to the effect tlr a serious unpleasantness had arisen between the deceased and hi children, growing out of his relations with the respondent.

Ziba O. Slocum, for complainant.

Charles C. Mumford, for respondent, Maria H. Carpenter.

Charles E. Gorman & James T. Egan, for respondents, the children of John A. Carpenter.

We therefore decide that the respondent has not proved the she is the widow of the deceased by virtue of a common law ma. riage, even assuming that we should be obliged to hold that such marriage, if fully proved, would be valid in this State. 
      
       By rescript filed at the April Term, A. D. 1891, the court found that a ceremonial marriage had not taken place.
     
      
       See opinion of Colt, J., in Mathewson v. Phœnix Iron Foundry, 20 Federal Reporter, 281, as to the validity of a common law marriage in this State.
     
      
       As follows : —
      Sect. 14. Whoever shall be married without duly proceeding as by this chapter is required shall be fined not exceeding fifty dollars.
     