This case cannot be controlled by sec. 16, ch. 161, Gen. Stats., because that section requires that the cohabitation should have continued until the decease of one of the parties. It might be that, after the decease of one of the parties, the policy of the law would not deem it necessary to inflict upon other innocent persons — as, for instance, the children of such a marriage — the unfortunate consequences — as, for instance, illegitimacy — of their parents' transgression, but would deem persons so cohabiting to have been legally married, i. e., treat the survivor and the children as if there had been a legal marriage. It may be that the policy of the law would not deprive children of the inheritance of their father's property in favor of collateral, perhaps remote, heirs. There is no pretence for applying the statute here, because neither party is dead.
By section 17, the evidence mentioned in that section is made competent, but not conclusive; and it may therefore be, as in the present case, rebutted.