The following opinion on third rehearing was filed May 8, 1905. Judgment of reversal adhered to:
4. Marriage Contract: Evidence. A contract between a man and woman, competent to marry, in which it is by them mutually agreed by that contract to then become husband and wife, constitutes a valid marriage; but when there has been no subsequent cohabitation, admissions of the parties, or other evidence, except the unsupported oath of one of .the parties after the other party is deceased, there is a presumption against secret marriages which must be considered as evidence against the existence of the contract. Our marriage laws aim at publicity; secret marriages are not favored. 5. Practice: Demubeer to Evidence. When in a jury trial a party moves the court to instruct a verdict in his favor, which is overruled and he is compelled to submit the matter to the jury, he may assist the court in a proper submission of the matter without thereby estopping himself to afterwards contend that a verdict against him is not’supported by the evidence. In such case the rule of American Fire Ins. Co. v. Landfare, 56 Neb. 482, does not apply. Sedgwick, J.1. Upon this motion for a rehearing both parties have filed additional briefs, and oral argument was had before the court. The principal contention of the defendant in error upon this motion is that the last opinion is wrong in holding that the evidence is insufficient to support the finding of the jury. It was said in that opinion that this is “the essential question in this controversy.” The former opinion in so far as it appears to reflect upon the position of this defendant in error in this litigation should be modified. As was said by the supreme court of Indiana in Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742: “It is important to ascertain the status of the person who asserts the validity of the marriage. In this case the person who does this is free from all taint of wrong; he is asserting his mother’s innocence of evil, and maintaining his right to property acquired by his father. If any right is lost to him it results from no wrong of his, but solely from the misconduct of another.” If the alleged marriage is fol*511lowed by cohabitation and holding each other out to the world as husband and wife, the presumption of the existence of the marriage which arises from these facts ought to be indulged in favor of a party who is himself necessarily innocent in' any view of the case.
2. Again, it is said in our last opinion {ante, p. 500) : “The fact that she and tire intestate had agreed to get married on a future day conclusively negatives the-claim of a de pncscnti 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 uncontroverted that there was a marriage in expectancy between the parties at the time of the intestate’s death.” This is a correct statement of the law only in the sense that a contract for a marriage in the future is not such a contract as will of itself constitute marriage, and that the fact that the language of the contract imports that the marriage shall take place at some future time is inconsistent with construing that language to mean that the contract is for a marriage de prcesenti. It was, of course, not intended to say that after a valid contract of marriage had been entered into, the parties could divorce themselves by agreeing to be married in the future, or that it was inconsistent for the parties to make two contracts, one that they should be married in the present and become husband and wife and the other that they should celebrate that marriage publicly at some future day. We have upon this motion been required to reexamine the whole record and it does not appear* that the language last quoted from the opinion is entirely applicable tó the facts a,s disclosed in this record.
3. It is insisted that the evidence of the alleged wife of the deceased should have been excluded. The first ground for this contention is that the litigation between her and the defendants in error here in regard to the appointment of the administrator of this estate is an adjudication of her status, and is binding upon all parties. We think that this contention is fully met by the reasoning of Mr. Coni*512missioner Albert in the second opinion herein, which is reported, ante, p. 490. The second ground for this contention is, we think, likewise untenable. It is urged that this witness was rendered incompetent by the provisions section 329 of the Code of Civil Procedure, but this court is committed to the construction of that section which is given it in the last opinion (ante, p. 500). It Avas there shoAvn that the adverse party in this litigation not the representative of the deceased in the sense intended in the section of the statute referred to, and the rule stated in McCoy v. Conrad, 64 Neb. 150, is there quoted as follows: “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 make the defense Avhich the deceased might have made, if living, or to establish a claim Avhich the deceased might have been interested to establish, if living, then he may be said, in that litigation, to represent a deceased person; but Avhere 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, Avhere the right of the deceased himself, at the time of his death, is not in any way involved), and the question is, not what Avas the right of the deceased at the time of his death, but merely to Avhom has that right descended, in such a contest neither party can be said to represent the deceased.”
The brief of the petitioners presents a very able argument upon this question, but it is predicated upon discussions from other jurisdictions based upon statutes essentially different from our own. Several decisions from the supreme court of Illinois are presented and strongly argued, but the difference between the two statutes is not discussed. Indeed it seems to be assumed that the statutes are identically the same. The statute of that state (ch. 51, sec. 2) is: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his oAvn behalf, by virtue of the foregoing section, when *513any adverse party sues or defends as the trustee or conservator of any idiot, habitual drunkard, lunatic or distracted person, or as the executor, administrator, heir, legatee or devisee of auy deceased person, or a* guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending,” with other exceptions.
“The heir of a deceased person” may be and often is the representative of the deceased in litigation that arises concerning the estate, but as is plainly shown in McCoy v. Conrad, supra,,the heir is not in all litigation concerning the estate of the deceased the representative of the deceased within the meaning of our statute. It is only when he stands in place of the deceased so as to uphold a right that the deceased had at the time of his death that he may be said to represent the deceased. When the right of the deceased at the time of his death is not in controversy, but the question is to whom does that right descend, the heir, although a party to the litigation, does not in that action represent the deceased within the meaning of the statute. Under the Illinois statute if the heir is the adverse party the statute applies. In the case at bar it is not because the witness was an heir of the deceased that she was allowed to testify, but because the adverse party does not represent the deceased. It does not appear from the opinion in Laurence v. Laurence, 164 Ill. 367, 45 N. E 1071, which was one of the cases principally relied upon, that this witness would not there have been allowed to testify since she was not testifying “of her own motion, or in her own behalf” which is by their statute made an essential element of disqualification. Under the construction of our statute now well established this witness was competent to testify.
4. We think also that it is correctly assumed in the opinion that a contract between the parties in which the minds of the parties understandingly meet, and in which it is by them mutually agreed by that contract to become husband and wife, is sufficient to constitute a valid mar*514riage. It must also be borne in mind that this evidence has been submitted to the jury under proper instructions, and that by their verdict they have declared that these parties made such contract and became husband and wife, and the familiar rule must be applied that such verdict will not be set aside unless it clearly appears that it is not supported by the evidence. What then shall be said of this evidence as supporting this verdict? It is based wholly upon the evidence of the alleged wife of the deceased. No human being had any knowledge of it except this witness, and the deceased whose evidence was barred by death. No circumstance or condition disclosed by this evidence declares the existence of such a contract. The alleged wife had everything to gain by establishing its existence. She has no fear of contradiction, and cross-examination presents no terrors.
In a similar case the supreme court of Minnesota suggested the increasing number of common law widows raising claim (in many instances doubtless fraudulently) to the estates of deceased men of wealth, and intimated that legislation to further protect estates from such depredation might be justifiable. Hulett v. Carey, 66 Minn. 327, 69 N. W. 31.
This witness testified that she was married to Mr. Sorensen by an “agreement.” ' “He promised to be my husband and I promised to be his wife.” This agreement took place “at his home.” She lived at that time “across the street from there.” “He requested me to come, he wanted to have a talk with me.” “He called at my house and requested me to come.” When she went to his house he told her he was tired of living alone, he did not believe in a public ceremony, and after some other conversation of that nature said “I promise to be your husband if you will promise to be my wife.” To this she agreed; she could not state the date of this contract except that it was “about the middle of October, 1894.” It was also agreed that they should continue living separately and just as they had been living. She says, “I understood that I was his wife from that time on.”
*515After liis death she sought to establish an interest in his property on the ground that they were engaged to be married; she spoke of this to several persons, and did not claim that she was his Avife, but alleged that he had agreed to marry her. If she knew herself to be his laAvful wife, and had consented to keep it secret until a public ceremony could be performed, it is difficult to understand why, when death liad prevented the public ceremony, she should fail to at once declare the truth. She did not assert that she had ever been his wife until after several attempts to obtain his property had failed, and she had learned that only as his AvidoAV could such an attempt succeed. Further details of the facts disclosed by this record may be found in the former opinions.
Our marriage laws aim at publicity. To allege that these laAvs have been disregarded, and that a secret marriage has been entered into, is to cast suspicion upon the conduct of the parties. Subsequent cohabitation, and holding each other out to the world as husband and vvife furnish strong corroboration of the existence of the contract. Where these elements of proof are Avanting, and, one party being deceased, the existence of the contract rests AAholly upon the unsupported testimony of the other party, the presumption raised by the circumstances amounts to proof opposed to the marriage contract itself. We do not think that the evidence of this witness is so direct, certain and consistent as to establish the contract of marriage in the face of this presumption. Gibson v. Gibson, 24 Neb. 394; Bailey v. State, 36 Neb. 808; University of Michigan v. McGuckin, 64 Neb. 300; Eaton v. Eaton, 66 Neb. 676, are not, when rightly considered, inconsistent with the views herein expressed.
5. When this defendant in error had concluded his evidence upon the trial in the court below, a motion was made by the plaintiffs in error that the court instruct the jury to return a verdict in their favor. This motion was overruled. Afterwards the plaintiffs in error offered their evidence and, when the evidence Avas closed, requested the *516court to submit special questions of fact to the jury, one of them being “Was Mrs. Ferguson before the death of Hans 0. Sorensen ever lawfully married to him?” and other similar questions. It is noAV contended that the evidence introduced by the plaintiffs in error “materially strengthened that of defendant in error,” and that as the plaintiffs in error did not renew their motion to direct a verdict in their favor they must be held by requesting the court to submit the question to the jury to have waived their objection that there was not sufficient evidence, and that therefore that question ought not noAV to be considered in this court. If, after their motion to direct a verdict, there had been substantial evidence tending to prove the alleged marriage, this argument of the defendant in error Avould have great weight. The testimony relied upon as corroborating evidence upon this point was developed upon the cross-examination of a brother of the deceased.
He testified that the deceased had in August, about two months before the time of the alleged marriage, and while intoxicated, said that he Avas “tired of baching and thought of getting married” and was “thinking of a widow with three children.” This might or might not have referred to Mrs. Ferguson. No time was mentioned, and if his language was serious, it was too indefinite to be of any value as evidence. There could be no reason to suppose that a verdict would be directed on account of this testimony when it had been refused upon the evidence as it stood Avithout it.
In American Fire Ins. Co. v. Landfare, 56 Neb. 482, it was said: “One who tenders an instruction which is given, which assumes the existence of evidence to establish an issuable fact in the case, cannot afterwards be heard to assert that there was no evidence received tending to prove such fact.” It does not appear that the defendant in that case was compelled to submit the matter in question to the jury, and having on its own motion requested the court to submit a question of fact, it was not allowed afterwards to say that there was no evidence upon which to submit it. *517But when, as in this case, a party moves for a verdict in his favor because there is no evidence to support one against him, and, his motion being overruled, he is compelled to submit the matter to the jury, he may assist the court in a proper submission of the matter without estopping himself to afterwards contend that a verdict against him is not supported by the evidence. The rule of American Fire Ins. Co. v. Landfare, supra, is also held in Iowa Savings Bank v. Frink, 1 Neb. (Unof.) 14; Missouri P. R. Co. v. Fox, 60 Neb. 531, and other cases. This rule is based upon the idea that when a party, by his language or conduct in the trial, induces the court to take a certain action, he can not afterwards in the same case say that there was no foundation for such action. It does not apply in this case.
We think the conclusion reached in the former opnion is right and should be adhered to.
Former opinion adhered to.