Umbenhour v. Umbenhour

VOORHEES, J. This cause of action comes into this court on appeal, and is submitted to the court on the pleadings and evidence. The main dispute or contention is over the question, whether one "Willard P. Umbenhour and Margaret Labus, otherwise known as Margaret Umbenhour, ever entered into a legal contract of marriage. There was no ceremony or public solemnization qf the contract between them, ■or marriage according to the statutes of Ohio regulating marriages; but it is contended by the defendant, John J. Weffler, as guardian of Grace Helen Umbenhour, a minor, that on or about May 12, 1901, at — 318 — the city of’Massillon in Stark county and in the state of Ohio, the saidi Willard P. Umbenhour and said Margaret Labus. entered into a contract of marriage, and thereafter cohabited together as man and wife, until the death of said Willard P. Umbenhour, which occurred on or about February 14, 1907. He died intestate, leaving as the only issue-of his body, the plaintiff, Lee Umbenhour, the defendant, Hazel Urnbenhour, and the said Grace Helen Umbenhour. Said Margaret is not. a party to this action. At the time of making said alleged contract of marriage, said1 Willard P. Umbenhour was a single man, and said Margaret Labus was. a single woman, both being of marriageable age, and no legal impediment existing to prevent their entering into a valid contract of marriage. The said Willard P. Umbenhour had been previously married, but, prior to said twelfth day of May, 1901, an absolute decree of divorce had been-granted to his former wife. The direct proof of the making of the-contract of marriage consisted of her, Margaret Labus’ testimony of the fact. She admitted in her testimony that she and Willard P. Umbenhour had sustained meretricious or illicit relations with each other-prior to May 12, 1901. They lived in the city of Massillon. He was a bartender at the Hotel Conrad, and she was laundress at said hotel. There is no evidence, nor is it even claimed that they there cohabited together, prior to May 12, 1901; he had a room in a tenement house on-“Park Row” in said city! The evidence does not disclose whether she-roomed at .the hotel or had a room in said tenement house on “Park Row.” It was not shown or admitted by her that they had cohabited together prior to May 12, 1901, the admission only going to the extent, that, prior to the date named they had illicit relations with each other. On the day named, she was at the room in said tenement house on “Park Row” where said Willard P. Umbenhour roomed, at which time and: place she testified the agreement was made. As to what occurred at that time she testifies in chief, as follows: that “Billy (meaning said' Willard P. Umbenhour') said to me, ‘The court won’t give us no license,”' and he took my hand and he said, ‘I pledge myself as a true and lawful husband ■&> you the longest day I live,’ and I said to Billy, ‘I pledge myself as a true and lawful wife to you the longest day I live’: he-slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘ If we ever have any children they will hold us together. ’ ’ ’ And on cross examination she testifies as follows: “Willard said to me, ‘The court wouldn’t give no licence,’ and he took my hand and he said, ‘I pledge myself as a true and lawful husband to you the longest day I live,’ and I said to him, ‘I pledge myself as a true and lawful wife to319 you the longest day I live.’ Then he kissed me and slipped a ring on my finger.” From this time, to wit, May 12, 1901, until the death of said Willard P. Umbenhour, they cohabited as husband and wife, so treated each other, and held themselves out as such to the community. They established themselves in a home in said tenement house in “Park Row” in the city of Massillon, where they lived for a time, and were recognized as husband and wife by those who had occasion to come in contact with them. Time, she. for about two weeks continued to work at the hotel as laundress, until they could fill her place. At the time the alleged agreement was made, Willard P. Umbenhour - was working at Sim Weffler’s, a brother of Squire Weffler, the guardian of said Grace Helen Umbenhour, and defendant in this suit. They prepared their meals in said room and established themselves in it as a home. After living in Massillon for about a year, they moved to the city of Alliance in said county of Stark, and took up their residence there, living in Mrs. Rastetter’s house for a while, later moved upon another street. They kept house in said last named city in the usual way that married people do. True, their acquaintance in this latter city was limited, they were strangers there, but so far as people beeam,e acquainted with them, they were recognized as man and wife, were introduced as such to callers and neighbors who had occasion to meet them. Before moving to Alliance, Willard’s uncle died, and he attended the funeral, taking with him said Margaret, and there introduced her to his relatives as his wife. While living in Alliance, a child was born; which child had been conceived after the making of said agreement or contract. The husband, or as we will still designate him by his name, Willard P. Umbenhour, secured the services of a physician to attend his wife in confinement. He said to the doctor, he “wished to engage his services to attend his wife in confinement. ’ ’ The doctor did so, was introduced by Willard to this woman as “his wife,” the child was born on October 3, 1902, and is still living, and through its guardian, the defendant, John J. Weffler, is contending for its rights as a child and heir of the body of Willard P. Umbenhour. Willard put its name, giving its name as Grace Helen, in the Bible belonging to them, among the names of other children and members of his family. When speaking to or concerning this child, he always referred to it as his, 'and when referring to this woman, either as his wife, or “mama” when desiring the child to go to her. Other facts, circumstances, and acts m recognition of their relation to each other as that of husband and wife might be mentioned, but this is the trend of the testimony bearing on the question of the agreement and of — 320 — their cohabitation. These circumstances and facts tend to corroborate the wife in her claim that the contract of marriage was made before these acts and relations were done and assumed. It is true that the relation between these parties was at one time, in its inception, and prior to May 12, 1901, meretricious and not matrimonial; we concede that a relation so commenced will be presumed to ■continue of the same character in the absence of proof of a change in its nature; but the parties might assume legitimate and proper relations, •and it' is admissible to show that'such change took place, if it did. In this case there was a change after the contract was made as we have shown. The only thing to militate against the validity of this marriage as a common law marriage, is the claim that Willard P. Umbenhour, at one time and after the making of the alleged contract, said he was married over at Wooster, Wayne county, this state, by a minister. Tie did not deny or say he had not married this woman, but gave a false ■statement as to where and how he was married. On another occasion, referring to this child, Grace, he expressed a hope or desire that she •should share in his property as his child, and on one occasion, and shortly before his death, or last sickness, in speaking about a ceremonial marriage, he said that “we ought to get married” or “we ought to get married now. ‘ ’ It is further contended that she, Margaret, gave a false statement ■concerning the marriage, stating that she was married on some big water. This statement, like his, as to where they were married, or that they ought now to have a ceremonial marriage, did not deny the making ■of the agreement, or that there was a marriage relation existing between them, but the statements were untrue as to the place and manner of their marriage. These statements, we think, can have no other effect or force than •as they tend to discredit her contention that a contract of marriage had been made between them at the time, place and manner now claimed by her on this trial. Whatever was said by Willard, or by her, as to when and where they were married, inconsistent with the present claim, we think, in the light of all the circumstances and conduct of these parties as disclosed in the evidence, from and after the date of the making of the contract, could not and does not destroy the effect of such a contract ■so made, followed by cohabitation, to establish a legal marriage between these parties. It is necessary to consider some questions urged at the trial as to the competency of this woman ap a witness in this case. It is contended — 321 — by plaintiff that she is an incompetent witness to testify to the making of the contract. The objection is not laid upon any special ground but of general incompetency. Under Sec. 5240 Rev. Stat., she is a competent witness unless some ground of exclusion is shown; she is not excluded by Sec. 5241, unless it would be under the third subdivision of this act. If she is, or ever was, the wife of Willard P. Umbenhour, her competency as a witness would be limited by this section.. If this contention is sound, would it not be the end of this case? We think the contention, that she is not a competent witness to prove the making of the agreement, is not tenable. Marriage, strictly speaking, is not a mere civil contract but is a status created by contract. It is true it is founded on consent of the parties, but the consent is the contract, because of which, the status is created. The contract being made by words in presentí, followed by cohabitation fixes the status. Until the status is fixed by cohabitation, either party to the making of the agreement for a present marriage is a competent witness to establish the fact of the agreement, but after the agreement is made, followed by cohabitation, the status is fixed, and then the parties would thereafter come under the exclusion as to communications and acts done between them, unless, in the known presence or hearing of a third party competent to be a witness, as is provided in Subdiv. 3, Sec. 5241 Rev. Stat. Some of the testimony of this witness, we think, will come under this rule of exclusion, and the objection to all such testimony is sustained, and so limited, the testimony coming under this rule is excluded, namely, where acts done and conversations had between these parties occurring after they had made the contract and commenced to cohabit under the agreement as man and wife, unless in the known presence of a third party would be incompetent and is excluded. Rut she is a competent witness to prove the making of the contract, and all acts and conversations between them until the marriage was consummated by cohabitation after the agreement was made. She is a competent witness under Sec. 5240 Rev. Stat. and not affected or rendered incompetent under Sec. 5241 until the marriage status is fixed by cohabitation. “Cohabiting together as husband and wife means living together publicly in the face of society, as if the conjugal relation existed; living in the same house, in like manner, as marks the intercourse between husband and wife.” Bush v. State, 37 Ark. 215. “Cohabitation does not mean sexual gratification only, but it means — 322 — to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.” People v. Lehmann, 104 Cal. 631 [38 Pac. Rep. 422]. This leads us to the consideration of the legal question involved, namely: Is a common law marriage recognized as a valid marriage in Ohio ? We state the proposition thus broadly for the reason that if no-marriages other than such as are solemnized under and by virtue of the statutes of Ohio regulating marriages are valid, such a conclusion would be the end of this case so far as the rights of this child, Grace Helen IJmbenhour, are concerned. We think the common law marriage is. recognized in Ohio as a valid marriage, but we think conditions must attend to make it valid. We adopt as a correct exposition of the law on this subject the clear and succinct statement of Judge Phillips in his charge to the jury in the case of Mieritz v. Insurance Co. 11 Dec. 759, 762 (8 N. P. 422), when he says: “Marriage in Ohio may be ceremonial, as I will call it for convenience, or it may be bjr mere agreement and cohabitation, and without ceremony and without license and without the publication of banns. So-that in Ohio, a man and a woman that are marriageable may become-husband and wife by the official solemnization of a marriage by virtue of a license, or after the publication of banns and without a license, or by what is called a common law marriage. If a man and a woman that are marriageable agree between themselves to become husband and wife and they agree to become such at once, and they thereafter continuously cohabit as husband and wife, sustain the relation toward each other that is proper only for husband and wife, * * * then the law says, that they are husband and wife. By such agreement to become at once husband and wife, and by such cohabitation and carrying out of that agreement, they become as legally and validly married as though they were married by official ceremony and by virtue of a license or by the-publication of banns. The cohabitation alone- would not make them husband and wife, nor would the agreement, if not consummated in the-way I have stated, make them husband and wife: but it is the agreement entered into at once, and the continued cohabitation in that relation, and the treatment of each other, not only between themselves but in-, the community, as husband and wife, that malees them such.” We believe this is the rule of law recognized by the great weight, of authority in this country, and there is no conflict with the principle announced by Judge Phillips unless it may be found in the reasoning-of the judge announcing the opinion of the circuit court in the case-of Bates v. State, 29 O. C. C. 189 (9 N. S. 273). — 323 — The record in that case as shown in the opinion of the court reversing the court below, fails to show any contract of marriage in that ease, and the Supreme Court in affirming the court and reversing the common pleas say in its memorandum of affirmance, State v. Bates, 77 Ohio St. 622, 623 : “Judgment affirmed on the ground that evidence did not establish a common law marriage.” This by no means sustains the contention that common law marriages are not recognized in Ohio. Without undertaking to cite generally the authorities outside of this state in sustaining such a marriage as we have in the case at bar, we will call attention to a few. In the case of Elzas v. Elzas, 171 Ill. 632 [49 N. E. Rep. 717], affirming the Elzas V. Elzas, 72 Ill. App. 94, the court held: “Although the relation between the parties was in its inception meretricious, a marriage is sufficiently proven by the woman’s testimony that they made a contract of marriage, the fact that they immediately moved from disreputable into respectable quarters and continued to live as man and wife, he introducing and representing her as such, and on the birth of their child sent her congratulations, etc.” Where it appears, as in this case, that'the intercourse between the parties was illicit at first, but subsequently it assumed a matrimonial character and was surrounded by evidence of cohabitation "apparently decent and orderly, raises a presumption of more or less strength that the parties have been duly married. While such cohabitation does not of itself constitute marriage it tends to prove that a marriage contract has been entered into between the parties. Such conduct and cohabitation are in corroboration or tend at least to corroborate the testimony of the wife in her claim that a contract was entered into as testified by her. The principle as here stated is supported by many authorities and especially .in the case of Gall v. Gall, 114 N. Y. 109 [21 N. E. Rep. 106], One of the latest cases bearing upon a common law marriage is the ease of Travers v. Reinhardt, 205 U. S. 423 [27 Sup. Ct. Rep. 563; 51 L. Ed. 865], where the court sajr in its second paragraph of the syllabus : “Persons whose .alleged marriage in Virginia might have been invalid for want of a license had they remained there, and might also, for want of a religious ceremony, have been invalid in Maryland, where they afterwards resided, must be deemed married in New Jersey, when, as husband and wife, they took up their permanent residence there, and lived together in that relation continuously in good faith and openly up to the time of the man’s death, being regarded by themselves and in the community as husband and wife, since their conduct towards each — 324 — other in the eye of the public while in New Jersey, taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of. husband and wife, which was as effective to establish the status of marriage in New Jersey as if it had been made in words of the present tense after they become domiciled in that state.” “A contract cannot be implied as a matter of law, yet there may ibe an inference from facts proved, which fairly lead to the conclusion ¡that there was a contract. When the conduct of parties are susceptible «of two opposite explanations, the law assumes it to be moral rather than iimmoral; and credit is to be given to their own assertions whether 'expressed or implied, of a fact within their own knowledge.” Port v. Port, 70 111. 484. In Hayes v. People, 25 N. Y. 390 [82 Am. Dec. 364], the principle is stated thus: It is a settled rule in this state, and in many other states that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation. Without pursuing the discussion further on authority or otherwise, we are of the opinion, and so find, that these parties were legally married; that Grace Helen Umbenhour is the legitimate child of such maririage and is an heir of the said Willard P. Umbenhour, and is entitled to tone-third interest in the premises described in the petition, and is entitled to the relief prayed for in the answer and cross petition of the defendant, John J. Weffler, guardian of said Grace Helen Umbenhour. And an order of partition is ordered in accordance with this finding and decree. To which finding and decree the plaintiff excepts. Motion for new trial filed and overruled; exceptions; statutory time for bill of exceptions; twenty days for separate finding of fact and conclusions of law.