
    Bruner v. Briggs.
    1. In an action by one as surviving husband, against the heir of a deceased wife, to recover an estate by the curtesy where the marriage is put in issue, a marriage, in fact, may be established by showing that they lived together and cohabited as husband and wife for a series of years, that they always recognized and treated each other as such, and that they were so treated and reputed in the community and circle in which they moved, although no record evidence was offered, nor the evidence of any witness who saw them married, was given. Such evidence is competent, and its sufficiency to establish the fact of marriage is for the court or jury trying the issue to determine.
    3. That the proviso of section seventeen of an “Act regulating descents and distributions,” as amended (60 Ohio L. 31), is a limitation on the right of a surviving husband to curtesy in his deceased wife’s real es. tate made in favor of her issue or legal representative of such issue by a former marriage. The right to curtesy secured by the general clause of said section, can not be affected or defeated, by showing that the deceased wife left illegitimate issue, who, under section fifteen of said act as amended (64 Ohio L. 105), inherited her estate.
    3. By the terms of said section seventeen as amended, the provision of section fifteen as amended, which provides that, “bastards shall be capable of inheriting or transmitting inheritance from and to the mother .. . in like manner as if born in lawful wedlock.” can not be so construed as to affect the surviving husband’s curtesy in the real estate of his deceased wife in all cases provided for in section seventeen.
    Error to the District court of Scioto county.
    The record discloses the fact, that Joseph Briggs brought his action to recover of Adolph Bruner, the plaintiff in error, possession of certain real estate on the ground that he is the surviving husband of one Martha Briggs, who died in 1871, seized of said real estate, and that as such he is entitled to an estate by the curtesy. Ilis right is put in issue. It appears that Martha Briggs, formerly Martha Ross, was the owner of this land, and by will devised it to her daughter Mary Jane Barnes, and that she, with her husband, conveyed the same by deed in fee, with covenants of general warranty to Bruner, and put. him in possession.
    
      Bruner had no knowledge of this claim to an estate by the curtesy, until shortly before action commenced, and in good faith made permanent and valuable improvements.
    On the trial there was no record evidence of Briggs’ marriage, nor was there any witness, who saw them married, but evidence was offered, running through a series of years, of cohabitation as husband and wife, of mutual treatment and recognition of each other as such, and of such reputation in the community and in the circle in which they moved.
    It appeared there was no issue of this marriage, and the plaintiff, in order to show that his wife did not leave issue by a former marriage, offered evidence tending to show that said Martha Briggs had never previously been married, and that her daughter Mary Jane was illegitimate.
    The court found, that Briggs was the surviving husband of Martha Ross or Briggs and that the daughter Mary Jane was not'the issue of a former marriage but was illegitimate, and therefore rendered a judgment that the plaintiff was entitled to an estate by the curtesy.
    This was affirmed by the district court.
    
      Moore c& Newman, for plaintiff in error.
    
      A. T. Holcomb, for defendant in error.
   Johnson, C. J.

Two questions of fact in this case are presented by the record for determination :

1. Was Joseph Briggs the husband of Martha Briggs at the time of her death ?•
2. Bid Martha Briggs have issue by a former marriage ?

The court below found both these •questions in favor of Briggs, that is, it found he was the surviving husband of Martha Briggs, and that she did not have issue by a former marriage. And as matter of law, it was therefore adjudged that he was entitled to curtesy in his wife’s estate, notwithstanding she left issue, Mary Jane, the grantor of the plaintiff in error.

Two errors are assigned for the reversal of this judgment.

It is claimed that in view of the fact that fhe marriage' is asserted by the alleged husband, and that that relation in fact is essential to liis claim, the evidence offered was insufficient to warrant the court in finding such marriage.

That as matter of law, the deceased wife having left issue, though not by a former marriage, capable of inheriting her estate, that issue, though illegitimate, brought the estate within the scope and meaning of the 17th section of an act regulating the descent and distribution of personal estate,” as amended March 1, 1869 (66 O. L. 21).

1st. As to the bind of proof and its sirfficieney to establish the marriage, in an action to recover possession of an estate by the curtesy.

It is conceded that evidence of cohabitation as husband and wife, of mutual recognition by the parties, as such, and of such reputation in the circle in which they lived, is competent as tending to prove the marriage ; but it is claimed that in a case like this, more positive and direct evidence, such as is required in prosecutions for bigamy, and in actions for criminal conversation, should be required. It is said marriage de jure, is the essential basis of the right infringed in the one case, and is the muniment of title in the other.

It is now too well settled to admit of dispute, that in all civil actions, when the rights to succession of an estate depends on the existence of a marriage, it may be proved by reputation, declarations and conduct of the parties. 2 Greenl. §§ 461, 462; Hubback’s Evidence of Succession, 239-248; Commonwealth v. Hurley, 14 Gray, 411; Gaines v. Rolf, 12 How. (W. S.) 472 ; Scribner on Dower, chap. ix.

2d. Assuming that there was no error in finding as a fact that Briggs was the surviving husband, and that the daughter of the deceased wife was illegitimate, the question of law which arose is, was the daughter, within the terms of the proviso of-the act of 1869, by which the right of the surviving husband to curtesy is defeated when there is issue by a former marriage.

The loth section of the act of 1831 (33 Ohio L. 43), regulating descents and distribution of personal estate, provided: “ That nothing in this act shall be so construed as to affect the right which any person may have to any estate by eurtesy or in dower in any estate of inheritance of any deceased person.” By the 13th section of the same statute: bastards shall be capable of inheriting, or of transmitting inheritance, on the part of the mother, in like manner as if born in lawful wedlock.”

The curtesy under that statute, not to be affected, was that known at common law, which could not become consummate, without birth of issue. By section 17 of the act of 1853, it was provided that, surviving husbands, whether there has been issue born during coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.”

As the law then stood, neither the want of issue of the marriage, nor the existence of children or legal representatives by a former marriage, nor of illegitimate heirs of the deceased wife, defeated the estate by the curtesy.

For reasons of public policy the legislature enlarged the surviving husband’s rights to curtesy in the estate of the deceased wife and extended it to all cases of surviving husbands whether there was issue or not. Neither the act of 1831, nor the act of 1853, nor the amendment of 1869, hereafter to be noticed affected the marital rights of the husband, during coverture, whether it be curtesy expectant growing out of the marriage merely, or curtesy initiate arising from birth of issue.

It is the curtesy of a “ surviving husband ” in the estate of a deceased wife, to which these statutes relate.

By the act of 1846, (1 S. & C. 693 a) this interest of the husband in the estate of the wife during coverture, was exempted from process for the payment of his debts, during the life of the wife, or the life or lives of the' heir or heirs of her body, and all conveyances of such interest during coverture were declared to be void, unless duly executed by both husband and wife as required by the statute regulating the execution and acknowledgment of deeds. By the acts of 1861 (1 Saylor’s Stat. 62) and of 1866 (2 Saylor’s Stat. 947)} the real estate, legal or equitable, belonging to a woman at her marriage, or coming to her during coverture by conveyance, or by purchase with her separate money or means, is made her, separate property and under her sole control, but it is declared that this shall not affect the curtesy of the husband “ in the real property of his wife after her decease.” It thus ■appears to be the fixed policy of the state to preserve the right to curtesy consummate.

Next in chronological order came the act of 1869 (66 Ohio L. 21) which is the re-enactment of the act of 1853 relating to curtesy with this proviso : “ provided however, that if any deceased wife shall leave issue or the legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representative of such issue iii her estate, unless it came to her by deed of gift from him, or by devise or deed of gift from his ancestors. These acts show how careful the legislature has been, not only to preserve the surviving husband’s curtesy as it existed at common law, but to enlarge it even when his marital right during coverture is taken away.

Now the claim is, that the loth section as amended (64 O. L. 105) giving bastards capacity to inherit and transmit inheritance on the mother’s side, the same as if born in lawful wedlock, and the 17th section as amended (66 O. L. 21), are statutes in pari materia and must be construed together, and that if this is done-, the proviso to the amended section 17 would read as if the words, issue by a former marriage,” read, “issue capable of inheriting from the deceased wife.” It may well be doubted, if, strictly speaking, the two sections are in pari materia. In a general sense, as relating to the subject of descents and distributions, this may be so, but in a more accurate sense, as relating to the rights of bastards to inherit, and of surviving husbands to curtesy, they are not.

Section 15, being section 13 of the act of 1831, which is prior in point of time, was intended to give to bastards the right to inherit or transmit inheritance on the part of the mother. At that time and until 1853, the husband’s curtesy consummate was the same as at common law, and section 15 of the act of 1831 expressly provided that nothing in the act (which included this provision in favor of bastards), should be ^so construed as to affect this estate by curtesy.

This latter clause is found also in the act of 1853, in the amendment of 1869, and in the revision of the statutes, section 4176.

It expressly takes away from the court the power to give such a construction to the bastardy provision as will affect the surviving husband’s estate by the curtesy. If, therefore, we should give to section 15 of the act of 1853, as amended in 1867, the construction contended for, it would defeat the surviving husband’s estate to curtesy, as expressly given by section 17.

The amended section 17 (66 O. L. 21), gives, in unambiguous terms, curtesy to the surviving husband in all cases, except when the deceased wife left issue or a legal representative of such issue by a former marriage.

It also expressly declares that neither section 15, as amended, nor any other provision of the statute relating to descents and distribution, shall be so construed as to affect this right.

The attention of the legislature as appears, was directed to this question, and it has said in language too plain to be construed, that although bastards" may inherit from the mother, yet this is not to affect the estate by the curtesy.

Again, down to 1869, the husband was entitled to curtesy, though the wife did leave issue by a former marriage, and though she might have left issue not born in lawful wedlock, capable of inheriting, even when the estate came from her former husband or his ancestors, though there was no issue of the last marriage. This was thought to be inequitable, when there were children of a former marriage, and where the estate was not the gift of the surviving husband, or the devise or gift of his ancestors, and so the proviso took away from him the right to curtesy in such cases.

The proviso is a limitation of his right, as it had existed since 1853, indeed as it had always existed, but it is only taken away when there is issue by a former marriage. It must have been in the legislative mind that bastards could inherit and transmit inheritance on the part of the mother. Having this in mind they used a term clearly excluding them from the class of heirs that would defeat the curtesy.

To give the words, “provided, however, if any deceased wife shall leave issue or legal representative of such issue by a former marriage,” the construction contended for would be to eliminate from the statute the significant words, “ by a former marriage,” or it would add to them the additional limitation “ or leaving illegitimate issue.”

This proviso is a limitation or exception to a right conferred by the general provision of the section. Its effect is to be limited to cases clearly falling -within its term.

In Woodbury v. Berry, 18 Ohio St. 462, where the court was convinced that certain words were by mistake omitted in copying the bill before its passage, said : “ But notwithstanding all this, ita lex seripta est, the language as it stands, is clear, explicit and unequivocal. It leaves no room for interpretation for nothing in the language is doubtful. It is our legitimate function to interpret legislation, not to supply omissions.”

Courts must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even though the consequences should be to defeat the object of the act. Smith on Stat. Const. 714; Maxwell on Interp. of Stats, p. 2, § 2.

In the case before us we cannot suppose it was intended to put illegitimate issue of the deceased wife on au equality with legitimate, by a former marriage, in their power to defeat the right of a surviving husband to his curtesy ' in an estate which most likely came from the former husband. While bastard issue may justly inherit from their mother as if born in lawful wedlock, there is no apparent reason why they should defeat the curtesy of a surviving husband. The intention of the proviso is manifestly limited tó cases of issue by a former.marriage where the estate did not come to the wife from the husband or his ancestors.

Judgment affirmed..

Doyle, J.,

dissenting. These statutes are in pari materia and should be so read and construed. Section 15 of .the act of ¡March 14, 1853, provided that “ bastards shall be capable of inheriting, or transmitting inheritance on the part of their mother in Mice manner as if they had been born in lawful wedlock.” Certainly this daughter did not inherit the estate of her mother, in like manner as if born in lawful wedlock, if there is carved out of her inheritance an estate by the curtesy which could not be carved out of such inheritance if she was legitimate. S. & C. Stat. 504.

Section 11 of the act of February 11, 1824, contained .substantially the same provision as section 17 of the act of March 14, 1853, the language being bastards shall also be capable of inheriting or of transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.” Chase’s Stat. 1313.

This act contained the provision (§ 15) that nothing in it shall be construed to affect the right any person may have as tenant by the curtesy in any estate of inheritance, nor shall the right, of dower claimed by any widow in any estate of inheritance be impaired in any wise whatever.”

This statute, however, created no new right of curtesy or dower, and the provision last mentioned was explanatory, to prevent such a construction of the statute as would impair the common-law right of the husband or wife in .those respects.

The right to curtesy at common law depended upon the birth, alive, of issue of the marriage out of which the estate grew, and was not affected by the birth of children of the mother before such marriage, whether legitimate or illegitimate. Hence the unimportance of that explanatory provision in the statute, as affecting the question in issue.

In the act of 1853, however, the right of the husband was enlarged by dispensing with the necessity of issue born during coverture, as a pre-requisite, to the estate by curtesy. While in the act of March 1, 1869 (66 Ohio L. 21), that right was limited by the provision ‘ ‘ that if any deceased wife shall leave issue or the legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representatives of such issue in her estate, unless the estate came to the deceased wife from the surviving husband, or by devise or deed of gift from his ancestors.”

The words “by a former marriage” in section 17 of this statute, and “ in lawful wedlock ” in section 15 of the act of 1853, which remains unchanged, are equivalent. If this daughter was born in lawful wedlock, it would necessarily be of a former wedlock or former marriage.

It was clearly the intention of the legislature to bestow upon the illegitimate child of the mother, in all respects relating to inheritance, the attributes of legitimacy, and to take away from the husband the right to curtesy in the interest of any child of the mother, which, in law or in fact, would be the legitimate heir of such mother, born previous to the coverture of the husband claiming such estate.

McIlvaine, J., concurs in the dissent.  