
    Mary Woods, Widow of Josiah Woods, and her four Children, against The Administrators of Josiah Woods, deceased.
    Columbia,
    1802.
    bnsbanü be leg more that seven ycare absent iron bis wife nnto~ the state, set helteR report eel to be dead ciii excuse the wife ii 1netri•~ lug a se coed busband~ send she thai have lice dow er CCV distei butive eIiarc of her seceeted Itusitand's es tale; tine sited tiny hasty cm unguarded cx pi.ession a leer's, in thc heat esf ia~ si el, tend te deprive her ci that right, Os bastardize 1ICI ISSUe.
    UPON a.writ of partition of lands, under the act of dis~ ributions. &c.
    To this writ the defendants, who were Sons of ~osiah Woods by a former ~vife, came in and pleaded ne unques ac~ eoupk in loyal rnatrzrnony, and upon issue taken thereon, the claimant, Mrs. W~ods, proved her marriage to the deceased ~osiah Woods in 1785, by a ir~agistrate in Yewberry county, George Root. Esq~ and that she had lived with him from that time till the day of his death, (luring which time she had four children by him, who also claimed a disir~butive share of the deceased's estate.
    The defendants, in order to rebut the effect 0 this marriage before the niagisirate, gave in evidence that the claim~ ant, styling herself Mrs. Woods, had been married to one Ta~j1or in TTirg~nia, who, they alleged, was alive wher~ this pretended marriage took place between her and theirfather; consequently, they contended, that neither she nor her children were entitled t~ any share or proportion of the de~ ceased's estateq
    
      In reply to this testimony offered by the defendants, it was admitted by Mrs. Woods that she had been married to Mr. Taylor, a former husband, but she proved that he had gone off and left her soon after the marriage, and gone into remote parts of the western country ; that he had been absent for seven or eight years before she married a second time, and that a report had prevailed that he was dead, and died some time before her second marriage, which she verily believed at the time of her second marriage, though no actual proof of the fact was produced.
    It also came out in evidence, that after the death of Jo* siah Woods, the intestate, the defendants and the widow quarrelled about the division of the estate ; that they had refused to allow her or her children any part thereof ; that very high words had passed between them on the occasion, and that she had been heard to say, in the heat of passion and debate, that she would have “ all she took with her “ when she was Taylor's wife, as she supposed they would w not allow her her thirds.” She afterwards rendered in an account against them, and called herself Mary Taylor. Upon reflection, however, afterwards, she was induced to give up this account, and make her demand regularly for her distributive share of her husband’s estate, which she had now done in behalf of herself and children.
    The defendants now urged against her claim, that she had herself admitted that she had been married to a former husband, who had gone off to the western country, and who, for aught that appeared on this trial, might be alive at-this day. That there was no proof of his being dead, or having been drowned, but a flying report to that purpose, and that common rumour was by no means a sufficient justification of a woman for marrying a second time, w'ithout some stronger or better proof of the fact. That she herself had admitted she was Taylor’s wife since the death of the intestate, Josiah Woods, and had rendered in an account against the estate by the name of Mary Taylor.
    
    For the demandant it was replied and argued, that she ' had very candidly admitted that she had been married to a former husband, who had gone off, left, and abandoned her f°r seven or eight years before she married a second time i that she did not even think of the second marriage until a report was current and generally believed that Taylor, her first husband, was dead, having been drowned. This, it was contended, was a sufficient justification to her in taking a second husband. By the law of England, if a man or wo» man is absent seven years from the kingdom, and has all that time been continually abroad, whether the party living in England have notice or not, it is a sufficient excuse for marrying a second time, and will exempt the party so marrying from all the consequences of bigamy. So, in like manner, if the parties are absent from each other within the kingdom, and one of them having no notice of the other’s being alive at the time, it will be a justification for marryinga second time.
    
      i Black. 164. "
    The case under consideration was still stronger in favour of the present claimant. Her first husband had left her and gone off into remote parts out of the state in which she was first married, and out of the limits of the state in which she was married a second time, and had been absent more than seven years, nor did it appear that she had ever heard from him during ail that time ; and what strengthens her case still more is, that it was currently reported and believed that he was dead, having been drowned, and it was not till after this report of his death that she married a second time. This, it was contended, completely removed every circumstance, of suspicion or imputation of her misconduct, and left her perfectly at liberty to take a second husband, without imputation either upon her honour, her chastity, or her marital duties.
    
    It was further urged on her behalf, that common fame and repute would prove and establish a pedigree, an heir at law to an estate ; and, therefore, it ought to be admitted as proof to establish the death of a husband abroad in another country ; and unless this kind of proof was admitted, one half of the widows whose husbands died in foreign countries, and who married a second time, might be deemed prostitutes, and their issue bastardized.
    With respect to her own imprudent declarations to the defendants, they were words of heat and passion, expressions used at a time when her resentments had so far got the better of her reason, that she really did not know what she was saying, and, consequently, they ought not to be regarded. As to the account she gave in, that must have been done under an ignorance of her right, and her want of legal knowledge on the subject, which ought not to prejudice her. Under all these circumstances, it was said, that it ill became the defendants to endeavour to make a prostitute of their mother in law, and it became them still less, if possible, to attempt to bastardize four innocent half brothers and sisters, the issue of their father’s second marriage.
    The presiding judge, (Bay,) in his charge to the jury, told them, that the only point of any dilhculty in the present case was, whether the claimant, Mrs. TVooch, at. the time of her second marriage, had good ground to believe her former husband, Taylor, dead ? If she had, then all her legal rights followed such marriage. That seven vears’ absence of a husband in another country, without his wife ever hearing from'him, was reasonable ground in law to presume that he was dead ; but when, added to this, a report was current and believed that he was dead, it removed every imputation of improper conduct from her. That general repute and information was, in many instances, as much as could be obtained in a matter of that kind ; and as no actual proof was offered in evidence that he was alive, it seemed to be a fair presumption that he was dead. If so, then the second marriage before the magistrate was good and lawful, for it has often been determined “ that a marriage before a magistrate “ in this country was good,” and all her marital rights would follow as a legal consequence of the marriage.
    As to the loose declarations of the widow, when she was enraged at being about to be turned out of house and home without a shilling, and lies- four young children at her back, he thought that the jury should pay no attention to them, they appearing to have been words of passion uttered with* out a knowledge of her right, which ought not to prejudice ller or her innocent children ; and so with regard to the account rendered, for if she pretended to make an illegal demand upon the administrators, it was no reason why she should be debarred of her just claim.
    The jury, however, contrary to the opinion of the judge, found a verdict against her.
    This was a motion for a new triaL
   The Judges,

after argument, were unanimously of opinion, that the presumption of law, from the length of time the first husband had been absent without her ever hearing from him, and the report of his death, were strongly in her favour. That the presumption of law in support of marital rights was much more favoured than a presumption against them, especially when such unfavoujable presumption went to bastardize the issue of a marriage, apparently legal arid proper.

Rule for new trial made absolute.

All the Judges present.

N. B. On the second trial there was a verdict in favour of the claimants, in consequence of which she and her children had a distributive share of the deceased’s estate apportioned off to the iru  