Travers v. Reinhardt

Mr. Chief Justice Shepard delivered the opinion of the Court: Upon the admitted fact that Joseph Travers, who died intestate, had been lawfully married to a wife who survived him, and assuming, for the time being, that James Travers, who devised all of his estate in the District to his surviving brothers and sisters, left a surviving wife also, the question to be determined is, whether their interests in the real estate embraced within the terms of the general provision of the will of Nicholas Travers passed to the heirs at law of the one, and the devisees of the other, or became vested in the surviving brother, Elias. The answer involves the ascertainment of the intention of the testator as expressed in the language of the general provision, which, having been set out above, need not be repeated. The claim that the entire estate became vested in Elias Travers. upon the death of his brothers Joseph and James, respectively, without leaving a child or children, rests upon the contention that the dominant intention of the testator was to retain the succession, as regards the property embraced in the limitations of the general provision, in the direct line of his male heirs; and that this dominant intention compels a construction of the general provision that would substitute the word “and” for the disjunctive “or” where it first occurs in the line “without leaving a wife, or a child, or children.” We agree with the opinion expressed by the auditor and the learned trial justice, that there is no expression of such a controlling intention — 577 — as to require this substitution. The words used are plain and unambiguous. This being so, they must be given their ordinary and usual meaning, and cannot be controlled by conjecture. The same words are repeated in another part of the general provision itself; and at the end of the first item of disposition in the will it is provided that certain of the devises therein “shall he subject to the general provision hereinafter made in ease of any of my sons dying without having a wife, or a child, or children.” This repetition of the phrase tends to show deliberation and care in the selection of words expressive of the testator’s intention. That Elias Travers himself, and after his death his heirs, took an entirely different view of the testator’s intention from that now maintained on their hehalf, is conclusively shown by the testimony introduced by the appellants in support of an allegation in their answers setting up an agreement by way of family settlement. It was alleged that in December, 1882 (after the death of Joseph), Elias and James Travers entered into a written agreement with their three sisters, by which it was provided that the interest of Joseph in the property under the operation of the general provision aforesaid should be treated as the joint and equal property of all of the said parties, which said agreement was carried into effect by intrusting the property to a joint agent, who distributed the revenues thereof in accordance with its terms; that after the death of James Travers the same agreement was extended to his interest; and that after the death of Elias Travers the revenues of the undivided property were collected and distributed by the same agent among the heirs of all in their proper proportion until a short time before the filing of the amended bill in this suit. No such written agreement could be found, nor could direct proof of it be made, because all of the parties who would have had any actual knowledge of the same had departed this life before the controversy began. In the view that we have taken of the proper disposition of the case, it is not necessary to determine whether the circumstantial evidence is sufficient to show that such an agreement was in fact executed as alleged. Whether so or not, Elias Travers certainly acquiesced in the claim of his — 578 — sisters. The evidence shows beyond question that after Joseph’s death the rents of his portion were distributed equally between Elias, James, and the three sisters. On January 1, 1886, Elias joined his sisters in the lease of a parcel of the property now in question to one Smith, in which the lessors are recited as “the only heirs at law of the late James Travers, deceased,” and which provided that the rent should be paid to the lessors and surrendered to them and their heirs. After Elias’s death the same distribution of the rents of the parts of the property devised to Joseph and James was continued. The only material question that remains for determination is whether James H. Travers was survived, as alleged, by a lawful wife. The only evidence of the marriage consists of the testimony of the alleged wife, since married to another person. She testified to the following facts, substantially: She was an orphan seventeen years old when she met James H. Travers, and her domicil was in West Virginia. James H. Travers lived in the District of Columbia. She went with him to Alexandria, Virginia, in August, 1865, where what she supposed to be a regular marriage ceremony was celebrated between them. There was no marriage license in fact, and the person who performed the pretended marriage ceremony was not a minister, though she believed him to be one at the time. They cohabited thereafter until James Travers’s death at Point Pleasant, New Jersey, on November 1, 1883. They first took a trip to New Jersey; were in New York on several visits, and spent about three weeks in the city of Washington, boarding with a tenant of Travers. She believed that she had been lawfully married until she learned the truth about six years afterwards. He always said “that it was all right, and we were just as much married as if we had been married before a priest or a minister.” In 1867 he bought a farm in Talbot county, Maryland, where they lived together nearly sixteen years. During the whole time he called her and introduced her as his-wife, and she was so recognized in the community generally. They removed to Point Pleasant, New Jersey, in 1883, and she was there recognized and reputed to be his wife until his death. She had two children by James Travers, — 579 — both of whom were stillborn. By way of corroboration, a mortgage, executed on September 27, 1867, to secure the purchase money of the Talbot county farm, by James Travers and his wife, Sophia V. Travers, was read in evidence. She was named therein as his wife, and her acknowledgment was so taken and certified to by a justice of the peace. The instrument was duly recorded. An unattested will purporting to have been executed by James Travers in Talbot county, Maryland, on February 8, 1881, in which the bulk of his estate is devised and bequeathed to “my wife, Sophy Virginia Travers,” was also produced. Another will was read in evidence, that was made at Point Pleasant, New Jersey, October 5, 1883. This was duly executed and attested by three witnesses. It was probated in the proper court in New Jersey, and letters testamentary were issued to said Sophia V. Travers. Later it was registered in the District of Columbia. By this will the testator devised all of his estate in the District of Columbia to his brothers and sisters. The remainder of his property of every description he devised and bequeathed, as recited, “to my wife while she remains my widow,” with full power of alienation, etc., with remainder over to a daughter of such as may remain undisposed of at her decease. It is further recited: “In the event of my wife’s contracting another marriage then it is my will that she shall possess and enjoy as of her own right only one third of the property remaining.” By the last clause his wife is appointed sole executrix. It is contended that no weight whatever should be given to the oral testimony above summarized, because on cross-examination the witness admitted that she had testified falsely in one particular. It appears that on her first examination she became greatly excited and abruptly left the examiner’s office. Later her cross-examination was resumed in Philadelphia, where she had her residence. She then confessed to having made a false statement relating to a matter not hereinbefore stated. We can not agree with the contention that the conditions presented compel the application to this evidence of the maxim, Falsus in uno, falsus in omnibus. The witness had no interest whatever in the subject-matter of the litigation. The single false statement re — 580 — lated to a matter not material in the determination of the case. Its recital is unnecessary, it being sufficient to say that it involved the reputation of another person, and that the temptation to shield that reputation was a strong one indeed. Having made the statement, she subsequently admitted its falsity under no apparent fear of contradiction or penalty. No withdrawal was made of any statement concerning her relations with James Travers, and no attempt was made to contradict any one of them, although the cross-examination shows that inquiry had been made in the community in which she lived so long in Maryland concerning his representations that she was his wife. Moreover, the documentary evidence before recited corroborates every statement made by her save that relating to the pretended marriage ceremony. That statement does not appear to be incredible, but whether it be true or false is, in our view of the case, of no practical importance. The legal status of the said Sophia V., as the wife of James Travers at the time of his decease, does not depend upon the law of Virginia where the pretended marriage ceremony was performed. And it may be conceded that the pretended marriage was absolutely void in that State for the want of the statutory license. Offield v. Davis, 100 Va. 250, 40 S. E. 910. Nor does it depend upon the law of Maryland wherein so many years of the alleged married life of the parties were spent. Consequently it is unnecessary to determine whether, in that State, though a valid marriage will be presumed upon proof of cohabitation, general reputation, and acknowledgment of the existence of the relation, it will so be in a ease where it is shown that cohabitation began without the requisite ceremony. See Barnum v. Barnum, 42 Md. 251, 296; Richardson v. Smith, 80 Md. 89, 93, 30 Atl. 568. That an informal marriage by contract per verba de prcesenti constitutes a valid marriage by the common law, which then, at least, prevailed in the District of Columbia, there can be no doubt. Meister v. Moore, 96 U. S. 76, 78, 24 L. ed. 826. But whether a lawful marriage has been shown in this case depends upon the law of New Jersey; where the parties had their domicil — 581 — at the time of the death of James Travers. If lawful there it will be recognized here. It seems well settled in that State that a valid marriage may be entered into by contract per verba de prcesenti; no particular ceremony is necessary. Nor is it of any consequence that the original relations of the parties may have been illicit, provided there be sufficient evidence that a contract of marriage was thereafter made. Atlantic City R. Co. v. Goodin, 62 N. J. L. 394, 401, 45 L. R A. 671, 72 Am. St. Rep. 652, 42 Atl. 333. That was an action for damages for an injury resulting in death, brought by the alleged widow of the deceased. There had been a ceremonious marriage between the parties many years before, but at that time Goodin had a lawful living wife from whom he had separated. After obtaining knowledge of that fact, plaintiff continued to cohabit with him. About 1892, the real wife died. Presumption of marriage, it was said, could not he indulged from the mere fact of cohabitation illicit in its commencement. The plaintiff testified, however, to a contract with Goodin, made verbally after the death of his first wife. There was no other evidence tending to show such a contract save a declaration made by Goodin sometime in 1892 or 1893, to a niece of plaintiff, and testified to by her alone, that, “your aunt now is my lawful wife.” Upon this evidence plaintiff was held to be his lawful wife. The testimony in this case is far stronger. The alleged wife testified to statements made to her by J ames Travers, after her discovery of the fact of the unlawfulness of the marriage, tending in some degree to warrant an inference of contract. This was followed by his public recognition of her as his wife, testified to by her, and shown in the recitals of the mortgage and of the unprobated will written by himself. After taking up residence in New Jersey, he continued to recognize her publicly as his wife. Whatever doubt there might be of the sufficiency of this evidence alone is settled by the recitals of the will made in New Jersey. Therein he devised and bequeathed certain of his estate to her as his wife, without giving her name, the amount thereof dependent upon her remaining his widow. And — 582 — by another recital, whether so intended or not, he met the very condition of a previous actual contract of marriage by the words, “in the event of my wife’s contracting another marriage.” She could not contract another marriage unless she had first contracted one with him. We are of the opinion that the evidence is sufficient to show that James Travers had a lawful wife at the time of his decease. In accordance with the foregoing conclusions, the decree must be affirmed with costs; and it is so ordered. Affirmed. An appeal to the Supreme Court of the United States was allowed June 6, 1905.