KELLER and GAWTHROP, JJ., dissent.
Argued April 16, 1928. The appellant's claim to share as widow in the distribution of the decedent's estate was rejected by the Orphans' Court. It appears from the evidence that the claimant lived with her parents in Tennessee where in January, 1871, she was married to one, Charles A. Eastman. After living together about two years at the home of her parents, her husband took up his residence at his father's home nearby and continued to live there until sometime in 1882, when he left the state without the knowledge of his wife, from which time she had no communication with him nor information as to his whereabouts prior to his death in Michigan in November, 1903. Not long after his desertion, her father having died, she accompanied her mother back to Armstrong County in this State where they lived before going to Tennessee. Some time prior to 1898, the claimant learned from a friend in her former home in Tennessee that it was reported *Page 474 there that her husband was dead, whereupon she employed an attorney living in that vicinity to ascertain the fact with respect to him and inform her. After inquiry, her attorney reported that he was unable to get any information as to whether her husband was living or dead, or as to his whereabouts if living. On the 18th of August, 1898, the claimant and John L. Holben went to Salamanca in the State of New York where they entered into a marriage contract before a Justice of the Peace there living. Holben had been married before and had a family of twelve children, nine of whom were living at home. He and the claimant returned to his home where the latter was introduced to his family and his neighbors as his wife. She was so recognized and received among their relatives, neighbors and acquaintances and so conducted herself until the death of Holben in January, 1926, up to which time there had been no question raised as to the validity of their marriage. They were esteemed in the community in which they lived and Holben who was a prosperous business man had accumulated a considerable estate. Seven conveyances of real estate executed at different periods between July 19, 1904, and December 8, 1922, conveying land owned by Holben in Armstrong, Jefferson and Butler Counties in Pennsylvania, were signed by Holben and the claimant as husband and wife and regularly acknowledged as such by them. By his last will executed January 1, 1926, Holben disposed of part of his estate as follows: "To my wife, Sarah J. Holben, I bequeath $4,000." Evidence was offered in opposition to the appellant's claim to the effect that Eastman, her husband, after having deserted her, went to Ohio where he lived a few years from which State he moved to Michigan, where on the 12th of May, 1900, he entered into a contract of marriage with Rachael Jennings. He died in that State on the 8th of November, 1903. On the state of facts thus disclosed the Orphans' *Page 475 Court held that the claimant was not the widow of the decedent because of her former marriage, and the fact that her husband was living at the time of the marriage ceremony between the claimant and Holben at Salamanca. The presumption is that the contract of marriage entered into by the parties before the magistrate in Salamanca was lawful and this presumption was recognized by the counsel for the appellee and the trial court. There is no support in the testimony for an inference of intended immorality in the conduct of the parties. So far as can be ascertained or may be inferred from the facts developed they intended in good faith to create the marital relation and the evidence does not admit a conclusion that their conduct in entering into their contract of marriage and in their relation afterwards was not consistent with such purpose. It was not sufficient to successfully resist the claim presented to show that the appellant's husband was living at the time she entered into the contract with Holben. It appearing in the evidence that Eastman was married to a woman in Michigan soon after Holben and the claimant had their marriage ceremony, the presumption in favor of innocence implies that the Michigan ceremony was lawful. The appellees must overcome that presumption therefore: Wile's Est., 6 Pa. Super. 435; Thewlis' Est., 217 Pa. 307; Richardson's Est., 132 Pa. 292. This obligation was assumed and testimony was taken to show that no divorce had been granted to Eastman at the place of his domicile in Tennessee between the date of his marriage there and the time of the marriage contract of the appellant in New York, but this leaves out of consideration the opportunity of Eastman to obtain a divorce in Ohio where he was domiciled for several years, or in Michigan where he lived the remainder of his life and where he was again married. The law will not gratuitously impute crime to anyone, the presumption being in favor of innocence *Page 476 till guilt appears: Breiden v. Paff, 12 S. R. 430; Senser v. Bower, 1 P. W. 450; Thewlis' Est., supra; Wile's Est., supra; I Greenleaf's Evidence, Sec. 35. As the presumption of regularity and legitimacy supports the marriage of Eastman in Michigan, there is no presumption that his legal capacity to be married arose at any particular time, and therefore in aid of innocence and legitimacy of the claimant here, the presumption is that his legal capacity to marry occurred before the marriage of his wife, the claimant: McCausland's Est., 213 Pa. 189; Picken's Est., 163 Pa. 14; I Greenleaf on Evidence, Sec. 41. It was said in Wile's Estate, supra, "that society rests upon marriage, the law favors it, and when a man and woman have contracted marriage in due form, the law will require clear proof to remove the presumption that the contract is legal and valid." Forty-four years after Eastman deserted his wife in Tennessee, and twenty-eight years after the claimant entered into the agreement with Holben to become his wife, an effort is made to show that this agreement was unlawful, and that the relation between the parties believed to be honorable and legitimate for nearly thirty years, was one of concubinage and illegal. After so great lapse of time all presumptions favor the legitimacy of the relation of the parties, and one seeking to establish the contrary should do so by clear and unequivocal evidence, and a decree to that effect ought not to rest on the assumption that the marriage of Eastman in Michigan was without authority of law. It is argued for the appellees that no divorce could have been granted to Eastman in the State of Michigan because the respondent received no notice of such proceeding, but it is sufficient to refer to the fact that many of the divorces granted in this Commonwealth and other states have no support in a personal service. The court having jurisdiction of the subject may enter a decree in conformity with the *Page 477 laws of the state whether or not that be effective with respect to the rights of the wife in the property of the divorced husband in the state of their former common domicile. It cannot be confidently contended that a decree of divorce entered in the State of Michigan would not be effective to annul the marriage bond, when not appealed from, if entered in conformity with the laws of that state, and the divorced wife, although not served with process, would be at liberty to accept the result of the decree. We find no evidence in the record of an attempt to show that no divorce was granted to Eastman before his marriage in Michigan, and the presumption of legitimacy of that marriage has not been overcome. There is no evidence or contention in the case that the relation between Holben and the claimant was meretricious either before or after their marriage agreement. They intended to become husband and wife through the ceremony engaged in, and their conduct comported with that understanding.
If it be conceded however that a presumption in favor of the regularity of the marriage of Eastman in Michigan and of his capacity to marry before the marriage contract of the claimant with Holben has no support in law, there remains for consideration the effect of the relation and conduct of the parties after the death of Eastman as bearing on the existence of marriage. It is true that the claimant testified on cross-examination that she was never married to Holben after the death of Eastman, but the context shows that she had reference to a marriage ceremony or a formal marriage agreement. Her evidence had no reference to the course of conduct engaged in by herself and Holben amounting to the recognition of the marriage relation between them. They had been married so far as form was concerned; there was no interruption of the belief that they were husband and wife during their joint *Page 478 lives, and there were repeated acts equivalent to a declaration that they were husband and wife. In seven deeds made while they were living together after the death of Eastman, delivered at various times between 1904 and 1922, they described themselves as husband and wife and acted in that capacity in their acknowledgments of the several conveyances. These instruments certainly show the declaration of the parties of the existence of a marital relation voluntarily assented to: Maryland v. Baldwin, 112 U.S. 490; Travers v. Reinhardt, 205 U.S. 423. It was said in Stevenson's Est., 272 Pa. 291, that a deed made by a woman claiming to be the wife of the decedent for the conveyance of some property owned by her in Ohio, was not conclusive on the question of marriage, but in that case the evidence was overwhelming that the decedent had never lived with the claimant as a husband and the conduct of the claimant after the date of an alleged marriage was wholly inconsistent with her claim. The case is authority, however, for the competency of evidence of such instruments with respect to the acknowledgment of the parties that they sustained the relation of husband and wife, and the decedent here in the solemnity of his will declared that the claimant was his wife. More than that, the home was conducted in a manner leaving no other impression on those familiar with the parties than that they were married. The children addressed the claimant as their mother, and so far as appears in the case a harmonious, respectable and respected domestic condition existed to the last day of the decedent's life. There was convincing evidence therefore that whatever may have been the mistake of the parties as to the legal effect of their marriage agreement, a state of matrimony existed between them after the death of Eastman. It was said in Edwards v. Enterprise Mfg. Co., 283 Pa. 420, "that the presumption that a cohabitation meretricious in its origin continues to be *Page 479 of that character may be rebutted and proved to have become matrimonial and a lawful common-law marriage established. The change may be established by circumstantial evidence, but the circumstances must be such as to exclude the presumption that the original relation continued and to prove satisfactorily that it was changed to matrimonial union by mutual consent." In that case the claimant admitted that she was not married; that no ceremony had been performed between them; that "she just went to live with him as others because she cared for him and thought he cared for her. That there was nothing said between them about going to live together as man and wife." Their relation, therefore, was clearly meretricious, but that epithet is not applicable to the claimant in this case. She rested under a belief of the death of her former husband. This proved to be a mistaken belief which rendered her marriage invalid as she discovered after the death of Eastman, but her arrangement with Holben was not the suggestion of lust nor intended to be in violation of law. It could properly be continued therefore after the death of Eastman on the understanding between the parties that they were husband and wife. This, we think the evidence clearly shows, is what they did. All the evidence is to that effect, and at this late day the reputation and conduct of the decedent and claimant ought not to be impeached on the evidence introduced in denial of the claimant's right. Something is predicated by the court of the fact that the parties went to Salamanca to be married after having made application to the Clerk of the Court of their own county for a license, but there is nothing to warrant the conclusion that that was done in defiance of the laws of Pennsylvania. The Clerk of the Court imposed upon them the necessity of showing that the former husband was dead, but that was a task not readily accomplished. His whereabouts had been unknown for many *Page 480 years, and it was much easier for the parties to go to a place not remote where a marriage could be celebrated without that necessity. We think, the court was in error therefore in dismissing the appellant's petition, first, because the presumption of a divorce obtained by Eastman was not overcome; and, secondly, because the uncontradicted evidence clearly shows that the claimant and Holben intended to, and did openly and publicly, by word and act, acknowledge themselves to be husband and wife after the death of Eastman. The long and faithful service and companionship of the claimant in the decedent's household and their continuous conduct and repeated declarations showing that they were so related and regarded should now be considered satisfactory proof.
The decree is reversed and the record remitted to the court below with a procedendo.