I think the case was rightly decided and that the decree should be affirmed on the clear and satisfactory opinion of the court below.
These facts were established beyond question:
Appellant was married to Charles A. Eastman in Tennessee in 1871. They lived together about a year; then he deserted her, and left the state in 1883; she returned to her former home in Pennsylvania in 1886.
She never obtained a divorce from Eastman, did not know his whereabouts and never was served with any divorce papers.
On August 18, 1898 she was married to the decedent, Holben, by a justice of the peace in Salamanca, New York.
They went there to be married after the Clerk of Courts of Armstrong County, Pennsylvania, where they resided, had refused to issue a marriage license *Page 481 because of lack of proof that her husband, Eastman, was either dead or divorced.
She had previously written to a lawyer in Manchester, Tennessee, but he could not discover any definite news concerning Eastman.
On May 12, 1900, Eastman married one Rachel Jennings in the State of Michigan.
Eastman died on November 8, 1903.
Shortly thereafter appellant learned from a pension agent that Eastman was alive on the date of her marriage to Holben; that he had since married again and had died. The pension agent, at the time he interviewed appellant, was engaged in investigating the claim of Rachel Jennings to a pension as the widow of Eastman.
Appellant told Holben what she had learned as to Eastman's being alive at the date of their marriage.
They continued to live together thereafter as they had done before, and were recognized in the community as husband and wife, but no ceremony of marriage was ever performed, nor was any contract of marriage in any form ever entered into, after they learned that Eastman was living at the date of their marriage in 1898.
Holben died in 1926. His children by his first wife contested appellant's right to claim as his widow.
No children were born to Holben and the appellant, so the question of legitimacy of issue, in favor of which the law leans most strongly (Wile's Est., 6 Pa. Super. 435, 441), does not enter into the case.
The opinion of the majority rests upon two presumptions:
(1) The presumption that Eastman obtained a divorce from appellant prior to her marriage with Holben.
(2) The presumption of a valid marriage, from cohabitation and reputation as man and wife for over twenty years after Eastman's death. *Page 482
(1) As to the first, it must be remembered that Eastman deserted appellant; not she him. The innocent party, who might legally have obtained a divorce did not. Eastman could only have obtained a divorce, prior to appellant's marriage with Holben, by perjury. It is carrying the presumption of innocence to strange lengths, indeed, to relieve one of the charge of bigamy by assuming that he was guilty of perjury. In view of the facts above stated it is more likely that Eastman, before his marriage to Rachel Jennings, heard of appellant's marriage to Holben and assumed that she, the injured party, had obtained a divorce from him, which we know was not the case. The appellees did prove that no divorce was ever obtained by Eastman in Tennessee; and the court below found as a fact that the appellant and Eastman were never divorced. Appellees were not required, in view of the circumstances of this case, to examine the records of every locality where Eastman lived after he left Tennessee in 1883, and prove that he had obtained no divorce in any of them. In Thewlis' Est., 217 Pa. 307, relied on by the appellant and cited in the majority opinion, there was no competent proof or admission that the deserted wife had not obtained a divorce from her first husband.
(2) If Eastman did not obtain a divorce from appellant, as the court below found, the second presumption relied upon furnishes no valid ground for reversing the decree of the court below, in view of the undisputed evidence in this case. For, in such event, appellant's marriage to Holben in 1898 was wholly void by reason of her existing prior marriage to Eastman, no matter how innocent her motive and intentions may have been in the matter. As was said by Judge PENROSE in Thewlis' Estate, supra, p. 309, in an opinion adopted by the Supreme Court: "If, when the decedent contracted the second marriage, he had not been divorced from the woman, whom, years before, *Page 483 he had left in England, the marriage, although solemnized in church, as it was, with due religious ceremony, was void, in spite of the conceded innocence of the wife and her ignorance of the existence of any obstacle. Nor could it have acquired validity if the first wife had survived the husband, no matter how great the lapse of time or what the belief in the community in which the parties resided."
The majority opinion rests on the fact that after Eastman's death appellant and Holben continued to live together as they had done before, and were reputed in the community to be man and wife and executed deeds and otherwise held themselves out to be such. If this were all the evidence in the case the opinion would rest on a firm foundation, for cohabitation and reputation are circumstances from which a marriage may be presumed, and may be sufficient to support a finding of a marriage duly entered into. But our Supreme Court has said time and again that they do not constitute a marriage and where the claimant herself proves that no valid marriage contract was actually entered into, evidence as to cohabitation and reputation goes for nothing: Tholey's App.,93 Pa. 36, 38; Grimm's Est., 131 Pa. 199, 202. "Cohabitation and reputation are not marriage; they are but circumstances from which a marriage may be presumed, but such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage in fact had taken place": Bisbing's Est., 266 Pa. 529,531; Hunt's App., 86 Pa. 294, 297; Murdock's Est., 92 Pa. Super. 275,277.
If, then, appellant's marriage with Holben in 1898 was void because of her existing prior marriage to Eastman, her relation with Holben, no matter how innocently it may have been entered into, did not constitute a valid marriage and did not become such by its mere continuance after Eastman's death. When appellant and Holben learned that their marriage ceremony *Page 484 was invalid by reason of her existing prior marriage and that Eastman having died there was no longer a bar to their being lawfully married, they could then have legalized their relation by a marriage, which, being a civil contract, required no religious or other ceremony beyond a contract in words of the present tense uttered with a view of and for the purpose of establishing the relation of husband and wife: Hantz v. Sealy, 6 Binney 405, 408; Com. v. Stump, 53 Pa. 132; Craig's Est., 273 Pa. 530,533; Murdock's Est., supra, p. 280. But the appellant herself testified that this was never done. Her evidence on the subject could not be clearer:
"Q. You never were married to John L. Holben after November 8, 1903? A. No sir.
"Q. You were never married to anybody after that? A. No sir."
"Q. Was there anything ever said, or any agreement ever made between you and Mr. Holben after the death of Mr. Eastman in regard to your becoming husband and wife? A. No sir, we never talked about it after we came home from New York.
"Q. You relied on the marriage of yourself and Mr. Holben up in the State of New York always afterwards as being the evidence of your marriage? A. Yes sir.
"Q. And you never had any other contract of marriage with him of any kind or form? A. No sir. I didn't."
I think the case is governed by the principle established in Hantz v. Sealy, supra. There a marriage ceremony had been performed between Jacob Hantz and Mary Sealy. They had cohabited as man and wife and had children. Had executed deeds for land in which she was styled his wife and had acknowledged them as such. But at the time of the marriage Hantz had another wife living from whom he had been separated. Subsequently the first wife obtained a divorce *Page 485 and the parties consulted a lawyer who advised them to celebrate a new marriage. Hantz said "I take you for my wife." But the woman on being told that if she would say the same thing, the marriage would be complete, answered "To be sure he is my husband good enough," thus asserting that they were already lawfully married. It was held that this did not constitute a valid marriage. Subsequent continued cohabitation, without a marriage contract, would not make them man and wife: Bisbing's Est., supra; Murdock's Est., supra; even after twenty years: Com. v. Stump, supra.
No other case in Pennsylvania, which I have been able to find, holds that a wedding ceremony, which was void because one of the parties was already married at the time it was performed, became a legal marriage, after the removal of the original bar or obstacle, by mere cohabitation and reputation and without a new contract of marriage, where the parties knew of the invalidity oftheir original contract of marriage and of the removal of the bar to their being legally married. The decisions are to the contrary.
Sympathy for appellant's condition should not lead to a decision which disturbs the well settled law of marriage in this state.
GAWTHROP, J., concurs in this opinion.