Thompson v. Nims

Winslow, J. A question is raised as to the exclusion of certain testimony. Appellant offered to prove that in 1867 Thompson stated that he had never married claimant; also, that Samuel Thompson, brother of the deceased, at one time stated that he did not believe they were married. This testimony was ruled out. It was not alleged that either statement was made in presence of the claimant. The rulings were unquestionably right, upon very familiar principles. Of this same nature, also, was the statement of Mrs. Samuel Thompson that she came to the conclusion they were not married, which the court struck out. Appellant’s main contention is that the evidence is insufficient to prove a marriage between Thompson and the claimant. Marriage, under our statute, is a civil contract. To constitute marriage there must be an agreement between the parties that they will hold towards each other the relation of husband and wife, with the responsibilities and duties which attach to that relation. Williams v. Williams, 46 Wis. 464. This agreement is a fact to be proven. It may be proven by circumstantial evidence, as many other facts are proven. In this case there is no direct evidence that these parties' promised to assume the relations of husband and wife, but the circumstances' proven seem to us very persuasive, and to justify the finding that there was a marriage in fact. The parties left the house of the claimant’s father and mother apparently with their full consent and knowledge, with trunks and bedding, he declaring that they were to be married. They stopped the same day at an hotel. A person whom the claimant [266] supposed to be a minister appears, something is done, the nature of which the claimant is prevented from disclosing, and from that moment the claimant is known and introduced as Mrs. Thompson. From that time, also, the parties live and cohabit together apparently as husband and wife, visit relatives of both,, assuming to bear that relation to each other, and continue those relations for several years. Then follows a separation, the cause of which does not appear, broken, however, by occasional visits, at which times the relation is always announced when occasion calls for it. The claimant always goes by the name of Thompson, and always bears an untarnished reputation. See note to this case in 17 L. B. A. 847.— Bep. We lay down no general rule as to the amount of proof necessary to establish a marriage in fact, but the circumstances proven here seem sufficiently clear and weighty to prove that a contract of marriage was entered into between the ^parties at the hotel in Davis, although no witness relates the words used. There was either a marriage contract made there or else this union was illicit in its inception. In view of the abundantly proven good character of the claimant, we refuse to' accept the latter horn of the dilemma. There may have been no license obtained, but this was not essential to make the contract binding on the parties. ' The marriage to Nims in 1818 tends, undoubtedly, to weaken the inference to be drawn from the cohabitation with Thompson, but, under the circumstancés here, it appearing that the claimant supposed Thompson to be dead, we regard it as of little weight. By the Court.— Judgment affirmed.