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 *290marriage. There was no-ceremony or public solemnization of the cpntract 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 the 12th day of May, 1901, at the city of Massillon, in Stark county and in the state of Ohio, the said 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. Um- ■ benhour, which -occurred on or about the 14th day of February, 1907. ' He died intestate, leaving as the only issue of his body the plaintiff, Lee Umbenhour, the defendant, Hazel Umbenhour, and the said Grace Helen Umbenhour. Said Margaret is not a'party to this action.
At the the time of making said alleged contract of marriage said 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 12th 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 the testimony of Margaret Labus 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 the 12th day of May, 1901. They lived iu the city of Massillon. He was.,a bartender at the. Hotel Conrad ; 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 co.habited 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 *291agreement 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 to 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 license,’ 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 plede myself as a true and lawful wife tq 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. True, for about two weeks she 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, and 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 became acquainted with them, they were recognized as man and wife, and were introduced as such to callers and neighbors who had occasion to meet them. Before moving to Alliance, Willard’s uncle died, *292and 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 we will still designate him by his name of Willard P. Umbenhour — secured the services of a physician to attend his wife in confinement. lie 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 the 3d day of October, 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 the 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 in 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 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 admissable 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.. He did not deny or *293say 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 do 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 as a witness in this case. It is contended 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 Section 5240, Revised Statutes, she is a competent witness unless some ground of exclusion is shown. She is not excluded by Section 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 *294is 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 stakes created by contract. It is true it is founded” on consent of the parties, but .the consent is the contract, because of which the stakes is created. The contract being made by words in praesenti, followed by cohabitation, fixes the slakes. Until the stakes 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 stakes 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 Subdivision 3 of Section 5241, Revised Statutes. There is some of the testimony of this- witness which 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: 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. But she is a competent witness to prove the making of the contract, and to all acts and conversations between them until the marriage was consummated by cohabitation after the agreement was made. She is a competent witness under Section 5240, and not affected or rendered incompetent under Section 5241 until- the marriage slakes 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., p. 215.
“Cohabitation does not mean sexual gratification only, but it means 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. Leahmesser, 38 Pac., p. 422; 104 Cal., p. 631.
*295This 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 Umbenhour, 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 Company, 8 N. P.—N. S., pp. 422-424, when he says:
“Marriage in Ohio may be ceremonial, as I will call it for convenience, or, it may be by 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 solomnization 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 they are husband and wife. By such agreement .to become 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 publication of banns-. Cohabitation alone would not make them husband and wife, nor would the agreement if not consummated in the,way I have stated malm 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 makes- 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 *296the Circuit Court in the case of Bates v. The State of Ohio, 9 C. C.—N. S., p. 273.
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 case, and the Supreme Court in affirming the circuit court and reversing the common pleas say in its memorandum of affirmance (77 O. S., pp. 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 Elizas v. Elizas, 171 Ill., p. 632, s. c. 49 N. E., p. 717, affirming the 72 Ill. App., p. 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 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 is assumed a matrimonial character and was- surrounded by evidence of cohabitation apparently decent and orderly, a presumption of more or less strength is raised 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., p. 109.
One of the latest cases bearing upon a common law marriage is the case of Travers et al v. Maria L. Reinhardt, by the Supreme Court of the United States, reported in -the May number, *297May 15, 1907, of "All Opinions of the United States Supreme Court. Advance Sheets,” page 563, where the court say in its second paragraph of the syllabus:
"Marriage — Per verba de praesenti. Persons whose alleged marriage in Virginia might have been invalid for want of a license had they remained there, might also for want of á religious ceremony have been invalid in Maryland, 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 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 hy 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 can not be implied as a matter of law, yet there may be 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 he moral rather than immoral; 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 Ill., p. 484.
In Hays v. People, 25 N. Y., p. 390, 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 marriage, and is an heir of the said Willard P. Umbenhour, and is entitled to one-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 *298decree. 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 facts and conclusions of laAv.
Donahue, J.The opinion already written by my associate so fully covers every question in this case that I do not care to discuss any of them -at length, -but simply to give my reasons for concurring in the majority opinion. -
I agree with both of my associates upon the question that there may be a valid common law marriage in Ohio, and the essential elements necessary to constitute such a marriage. It may be a matter of regret that such is the law, but it is not the province of the court to legislate upon such subjects; we have discharged our full duty when we declare the existing law and apply it to the facts and circumstances of the case at issue. I do not agree with our dissenting associate that the correct solution of this case depends entirety upon the evidence- of the witness calling herself Margaret Umbenhour. True, we must have recourse to her evidence, for any oral evidence touching the contract in praesenti; and if her evidence in that behalf were not corroborated by other facts proven in this case I would very readily agree with the contention of counsel for plaintiff and defendant, ITazel Umbenhour, not that the witness so unfavorably impresses me as to discredit her own evidence in that behalf, but the language that -she stated was- used in the making and entering into this contract is hardly the language that you would expect persons in their situation and condition of life to use; -but, notwithstanding that fact, it is just as certain that some change came into their lives -about that time. It is undisputed in this evidence that about that time, or within .two weeks thereafter, and just as soon as the hotel could secure another laundress, this woman gave up her position there and went to live with Willard P. Umbenhour, and their- relations thereafter were to all intents and purposes the same as the relations of husband and wife. Willard P. Umbenhour shortly -thereafter told, a friend of his that he had been married at Wooster, and to whatever persons *299they came in contact with iii Massillon during the remainder of the time they lived there, they introduced each other as husband and wife, and after they removed to Alliance their relations were such and conduct was such, and their treatment of each other and the child was such- as it would have been had they in truth and fact been- married. So that every thing that follows up until the death of Willard P. Umbenhour from and after this claimed contract or pledge was made is perfectly consistent with the claim, and especially the fact that he took Margaret to the funeral of his uncle and there introduced her to his relatives as his wife; It is true that prior to his death and after the birth of the child, he said to Margaret, “now, we ought to be married, ” but this does not necessarily preclude the possibility, or even the probability, of a common law marriage having taken place between them; for I am inclined to-the belief that even though all transpired that has been testified to by Margaret, yet -these people were, perhaps, of the. opinion that they were legally married, but their opinion upon the subject is not important. If this were a criminal prosecution of Margaret or Willard for bigamy, or a prosecution against Willard for failure to provide, his mere opinion as to whether he had or had not -been legally married to Margaret would be of no avail, but the case would be determined upon the facts proven, and not otherwise.
I am also thoroughly in accord with what is stated in the dissenting opinion, as to what these people should have done had they had any decent regard for society or for the welfare of their offspring; but I am not in accord with the statement that a court ought not, at the expense of two innocent children, divide their-patrimony and give it to their unfortunate child. This child is just as innocent of wrong as the two children who are conceded to be legitimate. Its rights ar.e just as sacred to this court, and ought not to be sacrificed upon the mere suspicion or mere possibility that Margaret Labus or Margaret Umbenhour is telling an untruth. This child has much more at stake in this litigation than the dollars and cents it will acquire in this partition suit, and if it is in fact legitimate these other children, Lee and Hazel Umbenhour, are -interested and ought to be concerned-*300in having its legitimacy determined, even if by doing so their share of the patrimony should be less, yet it is certainly to their advantage, and ought to be a source of great gratification to them, and certainly will he when they reach more mature years, to know that their half-sister is legitimate, and that the last hours of their father’s life was not spent in criminal relations with the mother of this child. But these considerations by no means determine the questions at issue. The evidence must control, no matter who it helps or hurts.
These matters are referred to only as showing the gravity of the case and the care and consideration that courts should exercise in determining the rights of the respective parties, and after careful and mature consideration of all this evidence I have reached the conclusion that there was such a contract in praesenii as the law requires, and that such contract was followed by a change in the relations of the parties, and was followed by cohabitation and the holding each other out to the world as husband and wife, and that by reason thereof there* was a valid common law marriage between Willard P. Umbenhour and Margaret Labus, and that the defendant, Grace Helen Umbenhour, was and is the legitimate child and heir of Willard P. Umbenhour, and as such comes within the provisions of the deed of Jacob Umbenhour to Willard P. Umbenhour for “his natural life, and to the heirs of his body,,if any he have.”