Spencer, Ch. J.
delivered the opinion of the Court.
Page 349
The only question reserved for the consideration of the Court, is whether the lessor of the plaintiff was the wife of
John A. Van Buskirk, at the time of his deaths It is not pretended, if she was his wife, that she is not entitled to recover. It appears that
Van Buskirk and the lessor cohabited as man and wife, at and near
Cocksackie, between thirty-five and forty years, and hada number of children, the eldest of whom is about thirty-seven years old. On the part of the defendant, it was found, that
Van Buskirk, in 1779, cohabited with a woman of the name of
Jane Blauw, whom he called his wife. They both said that they were married, and had a son, whom they called
John. They lived together in
Fishkill,unt\\ 1780, when they removed to New
Marlborough. In 1781,
Van.Buskirk returned to
Fishkill, and said, that he and his wife had parted, and that she had gone to
Long-Island, to her friends. Within six months thereafter*
Van Buskirk and the lessor were married, and removed from
Fishkill to
Athens. None of the witnesses have seen
Jane Blauw since 1780. One of them heard of her upon
Long-1 stand, in 1783, on her way to Nova-Scotiaand since that time she has not been heard of. Cohabitation and declarations of the parties, afford strong
prima facie evidence of a marriage in fact; but, in the present case, the presumption is encountered by strong facts, producing very great doubt of an actual marriage. Without any apparent rupture between
Van Buskirk and
Jane Blauw, they éepara-ted, nearly forty years ago, without any claims or pretensions upon each other that they were husband and wife. It seems to me a jury would have been authorized to say, that their intercourse and cohabitation was meretricious. It is not. necessary to the decision of this cause to place the plaintiff’s rights on that ground. .
Jane Blauw went to
Nova-Scotia in 1783, and has never been heard of since. She must be presumed to have died at the end of seven years from that period. This was so decided in the case of
King &
Mead v. Paddock,
* from the analogy to the statutes with respect to leases dependant on lives, and the statute of bigamy, and in conformity to the cases there referred to. Still, the marriage between
Van Buskirk and the lessor, if
Jane Blauw was the wife of the lessor, would
Page 350
void, as it took place during her life. Upon the authority 0f the case of
Fenton and
Reed, (4
Johns. Rep. 52.) tve have a right to presume a marriage between
Van Buskirk and the lessor, at any time subsequent to the period, when we are to presume
Jane Blauw to be actually dead ; and this period would be 1790. In the case of
Fenton and
Reed, the plaintiff and
Reed were married during the life time of her former husband, and that marriage was held to be null and void.
Guest, the former husband, died in 1800. After his death, the plaintiff continued to cohabit with
Reed until 1806, when he died. The Court said there existed strong circumstances, from which a marriage, subsequent to the death
o(Guest, might be presumed. The parties cohabited together, as husband and wife, from 1800 to 1806, and under the reputation and understanding that they were such, and the wife sustained a good character in society. A jury, we said, would be warranted to have inferred an actual marriage. In the present case, from 1790 to 1817, a period of twenty-seven years, there was cohabitation, the reputation of a marriage, and a good character in society. There are, therefore, much stronger grounds for the presumption of an actual marriage, after the presumed death of
Jane Blauw, than in the.case cited,
(a)
Judgment for the plaintiff.
(a).
Vide Doe v. Jesson, (6 East, 80. 84.) per Lord Ellenborough. Hopewell v. De Pinna, (2 Camp. N. P. Rep. 113.) In the case of The King v. the Inhabitants of Twyning, (2 Barn. & Ald. Rep. 385.) Ray-ley, J. said, that the law always presumed against the commission of a crime; and, therefore, where, as in that case, a woman, whose husband had enlisted as a soldier, and went abroad, and had not been heard' of since, within twelve months after the departure of her first husband, married a second husband, and had children by him, the second marriage was held to b e prima facie valid ; it being presumed, that the first husband was dead when the second marriage took place; and that it lay on the party objecting to the second marriage, to prove that the first husband was alive. (Vide, also, Phillips on. Evidence, 151. 10 East* 216.>