A marriage celebrated in any country, according to its own laws, is recognized and valid in any country whose laws or policy it may not contravene.
The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances from which its existence may be inferred.
5 Ohio State, 32. - 1855.
Petition for dower. Ruth Atherton married one Dennis in 1817 or 1818. They soon thereafter separated and each remarried, -Ruth marrying one David Smith. Smith, during the coverture, was seised of certain lands which he conveyed to the defendant, Chester Smith, Ruth not joining in the conveyance. David is now dead and Ruth asks to have dower set off to her. Case reserved.
Swan, J. - It seems to be conceded by the counsel for the complainant, Ruth Smith, that if her marriage to Smith was absolutely void, she is not entitled to dower in his estate. Such is undoubtedly the law; and it is equally well settled, that a second marriage, as in this case, while the first husband was living, is absolutely void, unless the legislation of this State has rendered such second marriage voidable only.
It is said that the statute which authorizes proceedings to obtain a divorce, "where either of the parties had a former husband or wife living at the time of solemnizing the second marriage, Swan's Stat. 325, § 1, does, constructively, render such second marriage voidable only. The fact of a prior marriage may be one of doubt; and hence this provision permits parties to have the subject judicially investigated and determined. Another object of this provision was, probably, to give alimony to the second wife of a man who had a former wife living. Besides, to render such second marriage valid, or voidable only, until decree of divorce, would require distinct and positive legislation.
No presumptive proof of divorce between Dennis and his wife exists. Indeed, a divorce being a judicial proceeding of record, we do not see how such a presumption could arise without some proof,
There is none.
The petition must be dismissed.
(b.) Seisin of husband during coverture.
23 New York, 331. - 1861.
Testator devised his lands to his widow for life, remainder to his children of whom petitioner's husband was one. During the continuance of the life estate part of the lands were taken under the exercise of the right of eminent domain and the moneys received therefor were paid into court. Petitioner's husband died in 1853, the life tenant in 1860. Petitioner asks a share of the money in court. Petition denied and the appeal.
Selden, J. - To entitle a widow to dower, the husband must have been seised, either in fact or in law, of an estate of inheritance in the land at some time during the coverture. This rule is inflexible. When, therefore, the husband had, previous to his death, simply a reversion in fee, or a vested remainder expectant upon an estate for life, his widow cannot be endowed. As in such a case the husband has never had either possession or any present right of possession, he cannot be said to have had a seisin of any sort, either actual or legal. It is conceded by the counsel for the appellant, that this rule applies where lands descend to the husband, subject to the right of dower of the widow of the ancestor; as if a father die intestate, leaving a widow and a son, and the widow is endowed, it is not claimed that the widow of the son, in case of his death, in the lifetime of his father's widow, could ever be endowed of the lands which had been assigned for the dower of the latter. But it is insisted, that where the estate comes to the husband, not by inheritance but by purchase, the widow may be endowed, notwithstanding her husband has had only a remainder in the land.
The distinction, or rather the idea, that it applies to this case, is evidently founded upon a misapprehension. It is true, that where a father conveys lands to a son, subject to the contingent right of the wife of the father to dower, if the father dies, and his widow is endowed, and before her death the son dies leaving a widow, the latter, if she survive the widow of the father, is entitled to dower in the lands of which such widow had previously been endowed. But the reason is, not because there is any distinction between a vested remainder, which comes by descent, and one created by deed, but because in the case supposed, the son becomes actually seised of the estate in the lifetime of the father; and this seisin is sufficient to entitle his widow to dower, although his estate is contingent, and is defeated by the death of the father leaving a widow.
I can discover no other foundation for the position assumed by the appellant's counsel, than the inapt use by Coke of a single word in a passage which I will quote. In speaking on this subject he says: 'For example, if there be grandfather, father and son, and the grandfather is seised of three acres of land in fee, and taketh wife and dieth, this land descendeth to the father who dieth either before or after entry, now is the wife of the father dowable. The father dieth, and the wife of the grandfather is endowed of one acre and dieth, the wife of the father shall be endowed only of the two acres residue, for the dower of the grandmother is paramount the title of the wife of the father, and the seisin of the father which descended to him (be it in law or actual) is defeated; and now upon the matter the father had but a reversion, expectant upon a freehold, and, in that case, dos de dote peti non debet; although the wife of the grandfather dieth, leaving the father's wife. And here note a diversity between a descent and a purchase. For in the case aforesaid, if the grandfather had enfeoffed the father, or made a gift in tail unto him, then in the case above said, the wife of the father, after the decease of the grandfather's wife, should have endowed of that part assigned to the grandmother; and the reason of this diversity is, for that the seisin that descended after the decease of the grandfather to the father is avoided by the endowment of the grandmother, whose title was consummate by the death of the grandfather; but in the case of the purchase or gift, that took effect in the life of the grandfather (before the title of dower of the grandmother was consummate), is not defeated, but only quoad the grandmother, and in that case there shall be dos de dote." Coke, Litt. 31 a, b.