Foster v. Hawley

15 N.Y. Sup. Ct. 68

• Court: New York Supreme Court
• Decided: June 15, 1876
• Status: Published

Opinion

Q-ilbeet, J.:

We cannot assent to the proposition put forth, in behalf of the appellant, that the illicit relation which she formed with Singer, assuming that it was formed on the faith of his promise to make her his wife whenever the impediment of his previous marriage should have been removed, was changed into matrimony merely by tlie removal of that impediment and their continuance of the same mode of life as theretofore. On the contrary, we think that it was incumbent on Mrs. Foster to show that something was done, after such impediment had been removed, which in fact constituted a marriage between them, and that there was a failure of proof on that point. A concubine cannot acquire the rights of a wife by survivorship. The marriage relation, however formed, is a sacred one, and sound public policy requires that its sanctity be preserved inviolate. It is quite apparent that if married persons were permitted to make valid executory promises of future marriage with third persons this policy would be at once subverted, and the practical evils of polygamy would receive the sanction of law. The question, therefore, is one of fact to be determined by the application of legal rules to the evidence in the case. It is unnecessary to go over that evidence in detail. It is undisputed that the relation between Singer and the appellant was illicit in its origin. It began in 1836 when Singer had a wife living. It was voluntarily entered into by Mrs. Foster, with full knowledge of that fact, and so continued until 1860, a period of nearly twenty-four years, when Singer obtained a divorce from his' wife. That relation was none other than an illegal and adulterous one. A valid marriage between the parties to it, prior to such divorce, was not possible. The presumption of law is, that a cohabitation which was illicit in its origin continues to be of that character throughout its duration, unless the contrary be proved. (Clayton v. Wardell, 4 N. Y., 230; Caujolle v. Ferrié, 23 id., 106 ; O'Gara v. Eisenlohr, 38 id., 296; Cunningham v. Cunningham, 2 Don. P. C., 481; Lapsley v. Grierson, 1 H. L. Cases, 498; G. C., 8 Scotch Sess. Cases [3d series], 47.) The only evidence to which we can give credence going to rebut that presumption in this case, consists of the same course of conduct between Singer and Mrs.- Foster as that which preceded Singer’s divorce, namely, cohabitation, and acts proving that Singer recognized Mrs. Foster and held her out to the world as his wife, coupled with his promise to marry her when he should have obtained a divorce from his wife, made at the commencement of the adulterous connection between them ; that, we think, is not sufficient. The concubinage which existed for so long a period cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such a contract, it is true, may be proved by circumstances, but they must be such as exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of an actual marriage by mutual consent. (Per Lord Campbell, Queen v. Millis, 10 Cl. & Fin., 749, et seq.) That such a contract was not made between Singer and Mrs. Foster is, we think, satisfactorily shown by proof of the marriage of both Singer and Mrs. Foster with third persons soon after their separation from each other. We cannot raise a presumption of a contract of marriage when the direct consequence of so doing would be to involve both parties to it in the crime of bigamy. We are unable to accept the testimony of Mrs. Foster that she married her present husband under the belief that she had been divorced from Singer. It would be hard to believe, if uncontradicted; but it was contradicted by the witness’s own conduct and declarations, especially by the certificate of her marriage with Foster under her maiden name of Sponsler, which states that it was her first marriage, and which she received and kept; and especially by her sworn statement made in the complaint in an action brought by her against Singer in 1864, after her marriage with Foster, to the effect that she began living with Singer in 1836 under the inducement of his promise that he would marry her as soon as he could obtain a divorce from his wife. That he never fulfilled that promise by any formal act, and that he persistently refused to do that which Mrs. Foster appears to have regarded as essential to its fulfillment, namely, yield his consent to a ceremonial marriage.

In the face of such evidence an actual marriage between Singer and Mrs. Foster seems to us to be not only unproved, but extremely improbable.

The order appealed from must be affirmed, with costs

BarnaRD, P. J., concurred. Present — BarNArd, P. J., Gilbert and Dyeman, JJ.

Order of surrogate affirmed, with costs.