concurring.
The opinion already written by my associates 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, they have discharged their full duty when they *325declare 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 entirely 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 presentí, and if her evidence in that behalf were not corroborated by other facts proven in this ease I would very readily agree with the contention of counsel for plaintiff and defendant, Hazel 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 used1 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 with whatever persons they came in contact.in Massillon during the remainder of the time they lived there, they introduced eaeh 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 everything 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 not 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 cas® would be determined upon the facts proven, and not otherwise..
*326I 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 are 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, aré interested and ought to be concerned in having its legitimacy determined, and 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 be when they reach more mature years, to know that their half-sister is legitimate, and that the last hours of their father’s life were 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 presentí 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. ’ ’