Opinton,
Me. Justice Steebett:After directing who shall be, respectively, plaintiff and defendants in this issue, the order of the Orphans’ Court further *654provides that it shall “be tried in the following manner: The plaintiff, Ann Thomas, shall simply put in evidence the certificate of her marriage, issued by Benjamin Jay, alderman, and then the affirmative of the issue shall be upon the defendants, with the burden of proof to show that Ann Thomas was not the lawful wife of William R. Thomas, the decedent, at the time of his death; the plaintiff affirming that she was the lawful wife of William R. Thomas, and the defendants affirming that she was not his lawful wife.” The considerations that moved the court to send this issue to the Common Pleas for trial sufficiently appear in the opinion just filed in Thomas’s Appeal, No. 180 of this term, but they have little, if anything, to do with the consideration of the questions presented by this record. Those questions relate solely to the instructions of the learned president of the Common Pleas as to the effect of the evidence before the jury, and the character of the proof necessary to overcome the prima facie case that was made for the plaintiff below by the introduction of Alderman Jay’s certificate of her marriage to William R. Thomas on January 16, 18T5. It is not even alleged that there was any error in the admission or rejection of evidence.
To rebut the case thus made in her favor, and to maintain the issue on their part, the defendants below introduced evidence tending to prove that about forty years before her alleged marriage to William R. Thomas, plaintiff was married to David Jones, at Llaneatog, Wales; that for many years thereafter they lived together as husband and wife at Aberdare and at Falda, in same country, and that at the time of her marriage to Thomas, and even after his decease, David Jones, her first husband, was in full life. In response to this, the plaintiff, in turn, introduced evidence tending to show that Jones left Wales and had been unheard of by her for more than seven years before her marriage to Thomas, and that prior thereto, as well as thereafter, she had reason to believe and did believe that Jones was dead. As to all these allegations of fact, on the part of plaintiff as well as defendants, in the issue, there was more or less conflict of testimony.
According to the terms of the issue, the laboring oar was on the defendants; and, in view of the evidence on which they relied, they requested the court, in their second point, to *655charge: “ If the jury believe that David Jones was in full life after the marriage of Ann Jones to Mr. Thomas, the marriage was void and the verdict should be for the defendants.”
Assuming the jury were satisfied that plaintiff was first married to Jones, and in the absence of any evidence that she was legally divorced from Mm, the proposition was correct, and with that qualification it should have heen affirmed. Instead of that, the learned judge said: “We affirm this, unless you find from the evidence that he was absent for a period of seven years, unheard from, and under circumstances which raise the presumption of his death, as wo have already charged you.” He had already charged, as complained of in the first specification of error: “ Now, under all the circumstances of the case, had she the right to presume when she married William II. Thomas, that her husband was dead under the law ? If she had, then her marriage was legal, and, so far as this case is concerned, she is entitled to her civil rights as the widow of William It. Thomas, and should not be deprived of them.”
The vice of this instruction is that it gives the presumption referred to, all the force and effect of actual death; in other words, it makes the presumption of death conclusive proof of the fact, and therefore irrebuttable. But, the presumption of death, arising from absence, etc., stands as competent proof of death only until it is successfully rebutted by competent and satisfactory evidence. If that was successfully done in this ease, and the jury were fully satisfied that at the date of plaintiff’s marriage to Thomas, in January, 1875, she had a husband in full life, viz.: David Jones, from whom she had never been divorced, that fact, without more, rendered the second marriage null and void. It matters not that she had reason to believe and did believe that he was then dead. If, in truth and in fact, he was then in full life, she was incapable of contracting the second marriage, and it was therefore void: Kenley v. Kenley, 2 Y. 207; Heffner v. Heffner, 28 Pa. 104. In the first case the court said “though the circumstances attending this case might exempt the defendant from the pains of bigamy, yet her first husband being in full life, and their marriage not annulled by any competent jurisdiction, the marriage was ipso facto void and null.” In the latter it was said: “ A man having a wife in full life is utterly powerless to make a valid contract of marriage, and his attempt to do so is utterly nugatory.”
*656While a well-founded belief in the death of her first husband (if in fact she had one) would have relieved plaintiff from the penalty for adultery, etc., it could not validate the second marriage, if, in fact, her first husband was living when it was solemnized. The act of March 13, 1815, § 6, provides: “ If any husband or wife, upon any false rumor, in appearance well founded, of the death of the other (when such other has been absent for the space of two whole years), hath married, or shall marry again, he or she shall not be liable to the pains of adultery; but it shall be in the election of the party remaining unmarried, at liis or her return, to insist to have his or her former marriage dissolved,” etc. The presumption, especially in criminal proceedings, is always in favor of innocence. When a marriage has been regularly solemnized, it is presumed to be valid until the contrary is shown. When that has been done by competent and satisfactory evidence the presumption of fact, in civil cases, must give way to the actual fact thus established.
For reasons above suggested, the first and second specifications of error are sustained.
In defendants’ third point the court was requested to charge: “ A presumption of death, if proved, may be rebutted by evidence showing that the man was in full life during or after the period of seven years.” The learned judge qualified his affirmance of this, as a general proposition, by saying: “ But, if the presumption has arisen, as to the wife’s subsequent marriage, that he was dead, she is not deprived of her civil rights thereby.” This qualification was erroneous, and in its application to the case at bar was practically a refusal of the point.
The two remaining specifications present, in a modified form, substantially the same questions that have already been considered. In view of what has been said, it is unnecessary to notice either of them specially. They are both sustained.
Judgment reversed, and a venire facias de novo awarded.