Randlett v. Rice

W. Allen, J. The only question is whether the petitioner had a lawful husband alive when she married the decedent, in 1880. She was married in 1867, in this State, to one Ira Alexander, who is still living. The petitioner contends that that marriage was invalid, for the reason that Alexander then had a wife living. He was married in 1864, in Portsmouth, Hew Hampshire, to a woman with whom he was living as his wife in Portsmouth at the time of his marriage to the petitioner, and he continued cohabiting with both for nearly a year, until the discovery by the petitioner of his relations with the other woman. The administrator contends that the marriage of Alexander at Portsmouth in 1864 was void, for the reason that he then had a wife [394] living. He was married in 1836 in Vermont, left his wife there in 1863, and went to Canada with another woman, after whose death, in the same year, he came to Portsmouth; his wife resided with her parents in Vermont until 1866, when she died. There is no evidence that either he or his wife obtained a divorce, and the marriage of 1864 was therefore invalid. The petitioner contends that there is evidence of a marriage between the same parties after the death of Alexander’s wife, in May, 1866, and before his marriage to the petitioner on September 11, 1867, so that he then had a wife. The evidence is, that the parties were married in December, 1864, in New Hampshire, and continued to cohabit until said September 11, and for several years subsequently. The cohabitation was the only evidence of a marriage after May, 1866. But cohabitation is not marriage, and, in this case, the cohabitation points only to the illegal contract of marriage under which it commenced. The parties had no thought of any other marriage. The testimony of the supposed wife shows this; and the facts that she did not know of the existence of the legal wife, and that Alexander did not know of her death, forbid any presumption that they made a new contract in consequence of it. It is argued that, in favor of the innocence of the petitioner, the lapse of over eleven years before her marriage to the decedent, during which time she had not seen or heard of Alexander, would afford a presumption that he had obtained a divorce from her. The circumstances raise no presumption of law that he was divorced, and whatever weight might be given to them alone or aided by other evidence, the evidence in this case will not permit the inference that such a divorce had been obtained. We are unable to avoid the conclusion that the marriage of Alexander with the petitioner in 1867 was a legal and valid marriage; and that the legal relation created by it was subsisting in 1880. Petition dismissed. * Footnotes [*] See Williams v. Williams, 63 Wisc. 58.