The following opinion on second rehearing was filed October 5, 1901. Judgment of reversal adhered to:
3.-: -. Marriage per verba de futuro cum copula is not consummated unless the copula is had in fulfilment of the future agreement. 4.-: -. An agreement to live together as husband and wife, made with the intention of being carried into effect, is not sufficient to constitute a common law marriage, unless it is acted upon by the parties living together as husband and wife. 5. Evidence. Evidence examined, and held not sufficient to establish a common law marriage. Oldham, C.This case is before us on a second rehearing. Each of the former opinions recommended a reversal of the judgment of the lower court, but for different reasons; and as the case is again before us for a general review, of the entire proceedings in the court below, we shall state such facts appearing in the record as are necessary to an understanding of the conclusion which we shall presently reach.
On the 3d of February, 1895, one Hans C. Sorensen departed this.life intestate, leaving an estate of the value of about f20,000. Due administration was had thereon, and the present controversy is to determine who is entitled to receive this estate; that is, whn are the heirs at law of the intestate. The brothers and children of the sisters of the deceased, claim to be his only heirs at law, and as such filed a petition in the probate court for the distribution of the estate to them. In this proceeding, an infant appeared by guardian and filed an answer and cross-petition, in which the relationship of the petitioners to the deceased is admitted, but a general denial is made of every other fact therein and for affirmative relief. It alleges that he, the infant, is the minor son and only heir at law of the deceased, the issue of a marriage between the deceased and one Ellen Ferguson.
In the district court, the cross-petitioner was allowed the right to open and close. This ruling was predicated *502upon a purported admission made in open court, as well as the admissions of the answer. At the beginning of the trial, counsel on behalf of the'defendant stated that they admitted of record that the petitioners were, entitled to the estate, unless it is proved that the deceased intermarried with Ellen Ferguson, and that the cross-petitioner is the issue of .said marriage and the legitimate son of the deceased, as alleged in the cross-petition. It is elementary that an infant can not make admissions, nor can his guardián or attorney do so for him; hence this ruling can not be aided by any of these purported admissions. The question, then, is, to whom did the right to open and dose belong as a matter of right, treating the allegations of the petitioners as being denied, which under the circumstances must be done? We think that the learned commissioner who wrote the preceding opinion in this case (ante, p. 490) rightly solved this question, and we approve the reasoning and the conclusion reached by him, that under the issues in this case the right to open and close “must yield to the sound discretion of the trial court.”
It is nest urged that the judicial contest (56 Neb. 729) between the alleged wife and the petitioners over the appointment of the administrator of this estate is an adjudication of the status of the alleged wife and this incidentally determined the heirship of the infant. This subject received careful and considerate attention at the hands of the learned commissioner who wrote the former opinion, and Avhose able elucidation we approve, as Avell as the conclusion reached, that “so far as his rights in these proceedings are concerned, he is not a privy to the former adjudication of the question of the marriage betAveen his mother and the intestate, and is not bound by it.” Ante, p. 490.
The mother of the infant was permitted, over the objections of the petitioners, to testify to conversations and transactions had with the deceased. The purpose of this controversy Avas to establish a common law marriage between herself and the intestate. It is claimed that she *503was' incompetent by reason of the statute (Code of Civil Procedure, sec. 329), which provides that “no person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness.” It may be conceded that the witness was interested, and the testimony is of conversations and transactions had between the witness and the deceased; yet, unless the adverse party is the representative of the deceased person, the evidence is not within the ban of the statute.
This question has been considered upon the point in issue in McCoy v. Conrad, 64 Neb. 150, and the court said (p. 154): “If a party is so placed in a litigation that lie. is called upon to defend that which he has obtained from a deceased person, and malee the defense which the deceased might have made if living, or to establish a claim which the deceased might have been interested to establish if living, then he may be said, in that litigation, to represent a deceased person; but where he is not standing in the place of the,deceased person, and asserting a right of the deceased which has descended to him from the deceased, that is, where the right of the deceased himself, at the time of his death, is not in any way involved, and the question is, not what was the right of the deceased at the time of his death, but,- merely, to whom has the right descended; in such a contest, neither party can be said to represent the deceased.”
Tested by the above rule, it is clear that neither the petitioners nor the cross-petitioner can be said to be the representative of the decedent in this action. But it is insisted that the administrator is, and as against him the testimony is within the bar of the statute. The administrator can have no interest by virtue of his office in the result of this action. It will not take from nor add to the estate. He is now a mere stakeholder, and the sum of his official duties is to pay over, that is, distribute, the pro*504ceeds of this estate as the court may direct. The purpose of this action is to ascertain to whom it shall be distributed. As said in a former opinion (ante, p. 490): “They (the claimants) occupied a position analogous to that of rival claimants for the same fund, who have been brought before a court of equity by a bill of interpleader, requiring them to interplead for the fund, in order that their respective rights may be ascertained and determined and the plaintiff exonerated.” This is not the administrator’s controversy; it belongs to the rival claimants, and the office should not be used by either party as a rampart to fight behind. The witness, we think, was competent to testify in this action. Bollinger v. Wright, 143 Cal. 292, 76 Pac. 1108.
This brings us to what we now deem the essential question in this controversy, and one which heretofore has not been considered. Does the evidence in this record establish a common-law marriage between the mother of the infant and the intestate?
There was a time, perhaps, when the doctrine of a liberal construction of the testimony and slight proof of a common-law marriage subserved a useful purpose; but if it ever did, that time is long since past. There is nothing to be said in its favor now. Especially is this so in this state, where the legislature has undertaken to provide for the formal solemnization of the marriage rites, if not in public, at least in the presence of witnesses, and have the fact of the marriage preserved in records provided for that purpose by the state. This ancient doctrine is alien to the ideas and customs of our people. It tends to weaken the public estimate of the sanctity of the marriage relation. It puts in doubt the certainty of the rights of inheritance. It opens the door to false pretenses of marriage and the imposition upon estates of supposititious heirs. It places honest, God-ordained matrimony and mere meretricious cohabitation too nearly on a level with each other. In view of these consequences, that are apparent to all, it seems to us that grave considerations of public policy re quire us to closely scrutinize the testimony offered and the *505proof adduced in support of every common-law marriage, alleged to have been consummated in this state.
It appears from the record that the intestate lived for a number of years in the town of Ord; that he was a bachelor, who lived alone and did his own housekeeping; that at the time of this alleged marriage he was about fifty years of age; that the woman was a widow, aged about forty years, and lived, together with her children, about a block away; that she did laundry work and house-cleaning for her neighbors, including the intestate. These matters are mentioned merely to exhibit the surrounding conditions of the parties. It may be well to observe here that if this alleged husband, and admits that she and the intestate had of the woman .alone. There is none other. In her direct examination she testifies that the intestate, at his house, about the middle of October, 1894 (a more exact date-she would not give), made a verbal proposal of marriage to her, which she accepted, and that she and the intestate then and there agreed henceforth to be husband and wife; that'this marriage was to be kept secret; that she went home and lived with her children as before; that about a week after they had sexual intercourse, which was occasionally indulged in at times thereafter; that the result of this intercourse is the infant who is the cross-petitioner in this action; and that intestate gave her from time to time small sums of money.
On cross-examination she admits that she never told any one of this marriage; that she signed her children’s school report in her former name; that she received aid, provisions and .fuel from the overseer of the poor during the winter after the marriage and in the lifetime of her alleged husband, and admits that she and the intestate had agreed to be married on the Wednesday of the week that he went to Lincoln and there died; that she had told her neighbors, Mrs. Colby and Mrs. Briley, that she was going to be then married; and that she had engaged Mrs. Briley to keep her children until after the marriage ceremony was performed; that the intestate was in bad health, and that *506lie went to Lincoln for medical treatment; that she did not know at the time that he had gone, and she had not seen him for some days before his departure. The further record in this case is in the same condition as the record that was before this court upon the first contest (56 Neb. 729), of which Mr. Commissioner Ragan then said: “The record contains no evidence of either Sorensen or Mrs. Ferguson having ever told or claimed to any one that they were married. At no time or place did either one of them introduce, speak of or hold out the other as husband or wife. The parties did not cohabit together after their marriage, but each continued to occupy their respective places of residence as before. No writing, note, memorandum, or verbal acknowledgment or statement of this marriage appears to have been made by either of the parties thereto.” This excerpt expresses the true condition of the present record on this subject.
From this evidence it . would seem clear that there was no marriage per verba de prwsenti. The fact that she and the intestate had agreed to get married on a future day conclusively negatives the claim of a de prwsenti marriage. There could not be a marriage consummated, and a marriage in expectancy at the same time between the same parties, and the evidence in the record is {incontroverted that there was a marriage in expectancy between the parties at the time of the intestate’s death.
Was there a marriage per verba de futuro cum copula? This must be answered in the negative for the same reason; that is, so long as the marriage is in expectancy, it can not be said to have been consummated. Bishop in his work on Marriage and Divorce, vol. 1, sec. 254, says: “The marriage by consent per verba de futuro cum copula does not differ from any other informal marriage. It is, in effect, and in its essence, a marriage by consent de prwsenti; and the common method of designating it is only for convenience, and as indicating the sort of evidence by which.it is established; so, of course, its consequences are, by all opinions, precisely the same as those of marriage by consent *507per verba■ de prcesenti.” In the preceding section (253) Mr. Bishop defines the doctrine of this species of marriage. He says: “It is, that, where parties are under an agreement of future marriage, if then they have copula, which is lawful in the marriage state alone, they are presumed, in the absence of any shoioing to the contrary, to have arrived at the period of actual marriage, or to have transmuted their future to present promise; because the law always leans to the good, rather than the evil, construction of equivocal acts.”
It is said in Stewart, Marriage and Divorce, sec. 87: “In states where no marriage celebration is necessary, and Avhen such contract is folloAved by sexual intercourse between the parties, the law, so as not to presume fornication, presumes that parties who have promised to marry mean sexual intercourse folloAving such promise to be the consummation of such agreement. But this presumption may be rebutted by any facts which show that the parties knew or intended their intercourse to be illicit, as where at the time they Avere looking forward to being married with a ceremony.” See, also, Peck v. Peck, 12 R. I. 485; Fryer v. Fryer, Rich. Eq. Cas. (S. Car.) 85.
In Stoltz v. Doering, 112 Ill. 34, it is said that at common law the fact of sexual intercourse after an agreement to marry at a future day does not constitute marriage, and that the copula must have been in fulfilment of the agreement to marry.
From these authorities, it appears that the law, in the absence of evidence, raises the presumption that by the act of copula the parties then and there intended to consummate their existing agreement to marry; that is, to convert the future agreement into a present consummation. This is the whole doctrine of marriages de futuro cum copula.
There is no difference in the basic principles of the marriage contract from any other; the minds of the parties must meet, and the agreement to marry must he made. The time when the marriage shall take place may be the present, or may be in the future. If in the future, there is not *508á present marriage,- but an agreement to marry, and the mere act of copula does not change the agreement. The law presumes, in the absence of evidence, that the parties themselves changed the terms of the contract from the future to the then present. When, however, the evidence establishes, as in this case, that during the period of the sexual intercourse between the parties, they had set the day in the future, and were making preparations for and intending to solemnize their marriage rites in accordance with the statute of this state, there is no- ground for this presumption, and the law will not indulge in it.
Furthermore, we think the evidence insufficient upon another ground. It fails to show that the parties lived together as husband and wife; in fact, it affirmatively shows that they did not so live, nor is there any act or deed of the parties that can be said to be a public recognition of t he marriage relation.
It is said in Lorimer v. Lorimer, 124 Mich. 631, 635, 83 N. W. 609, that “Óur courts have gone a good way to sustain the validity of a marriage where an agreement to live and cohabit together as husband and wife has been made and acted upon. But at no time has it been said that, in the absence of a valid marriage ceremony, a simple agreement to live together, even though the parties intended to carry out the agreement, is sufficient to constitute a valid marriage, unless acted upon by living together and cohabiting as husband and wife.” Of like effect are the holdings in People v. McQuaid, 85 Mich. 123; Maryland v. Baldwin, 112 U. S. 490; Commonwealth v. Stump, 53 Pa. St. 132; Hiler v. People, 156 Ill. 511; Cargile v. Wood, 63 Mo. 501.
In Maryland v. Baldwin, supra, it is held that “In the absence of statutory regulations, a marriage is a civil contract and may be made ‘per verba de prcesenti’; that is, by words in the present tense without attending ceremonies, religious or civil, but some public recognition of it is necessary as evidence of its existence.” The reason for this is given in the opinion of Mr. Justice Field in which he says: “The protection of the parties and their children and con*509siderations of public policy require this public recognition.” It is further said in that case that this public recognition may be made in any way which can be seen and known by men, as living together as man and wife, or by public conduct which acknowledges the marriage relation.
1. Common Law Marriage: Presumption. There is a presumption oí the existence of marriage which arises from cohabitation and holding each other out to the world as husband and wife, and public policy will not prevent a child born of such relations from availing himself of such presumption in a contest as to his legitimacy. 2.-: Consistent Contracts. A contract for a marriage in the future can not of itself constitute marriage, and if its language imports that the marriage is to take place in the future, such contract will not constitute a marriage de prcesenti. But two contracts, one constituting a present marriage and the other providing for a future public celebration thereof, are not inconsistent. 3. Heir as Representative of Deceased. The heir is not, in all litigation concerning the estate, the representative of the deceased, To represent the deceased, within the meaning of section 329 of the Code of Civil Procedure, the heir must stand in his place so as to uphold a right which the deceased had at the time of his death.*509We think that the requirement that the parties assume the marriage relation, is reasonable. It is based upon a sound regard for the public welfare. Public policy forbids all things that are inimical to the public welfare and the due administration of justice. To establish a marriage in a case like this on the evidence in this record would be to open the door to fraud and perjury, and to expose every estate to the rapacity of designing adventurers. ' This would be against every policy of the law, and consequently should not be done.
We therefore recommend that the former opinion be adhered to.
Ames and LettoNj CO., concur.By the Court: For the reasons stated in the foregoing opinion, the former opinion is adhered .to.
Former judgment adhered to.