McLennan, P. J.:
On the 18th day of September, 1889, á ceremony of marriage' between the decedent, Arthur Wells, and the appellant, Emma Wells, whose maiden name was .Emiria Garrett, was performed at the city of Chicago, 111., by the Eev. A. K. Parker, pastor of the ■Centennial Baptist Church of said city, in the presence of witnesses, and in all respects in conformity with the laws of said State. ■ A certificate of such marriage, signed by the clergyman and by two wiri nesses, was put in evidence in this proceeding, and its genuineness is riot questioned. Neither is it suggested that the appellant did not consent to the performance of such ceremonial marriage in perfect good faith, fully believing it valid in all respects and that she thereby became the lawful wife of Arthur Wells. . Immediately upon the performance of such marriage Emma Wells commenced to live and. cohabit with Arthur Wells as his wife, and they sustained to each other the relation of husband and wife until his death,which occurred on the 24th day. of May, 1905. During all that' time the appellant was called and known as Mrs. Arthur Wells. They lived in the city of -Chicago for nearly two years after such marriage. They then moved to the State of Nebraska, where they resided for about three years,, when they returned to.the State of [81] Illinois where they remained until about February,. 1895, when they went to St. Paul, Minn., where they resided until 1903, when they again returned to Chicago, where they resided until the death of Arthur Wells.
It is thus seen that for more than fifteen years the appellant lived with and cohabited with Arthur Wells as his wife and there can be no question but that she understood and believed that the relation which she sustained to him during all that time was that of wife. During those years the decedent’s sister, Ella Rykert, the respondent, frequently visited at the home of these people, as did also the father and mother of Arthur Wells. In fact, his. mother lived in the home for a considerable time, died there, and Emma Wells, this appellant, and other members of the family went with the body of the mother, to the city of Niagara Falls, where she was buried. During all that time the respondent, the father and mother and other members of the decedent’s family, as well as all others who came in contact with them, treated and recognized the appellant as his wife. She was called “ daughter ” by the father and mother, “ sister ” by the respondent, and, as above stated, “ Mrs. Arthur Wells” by all.
It appears, however, that at the time the appellant married Arthur Wells he had a lawful wife living; that such wife had become insane and that he had placed her in an asylum near the city of Chicago, and that such wife lived about five years after the decedent’s marriage to the appellant. The appellant did not know of such former marriage or when the death, of such former wife occurred. She had never heard of her existence until shortly prior to the death of Arthur Wells. Neither does it appear expressly that the decedent ever knew of the death of his former wife; but it does appear without contradiction that such former wife in fact died within five years after the ceremonial marriage was performed between Arthur Wells and the appellant, and, as we have seen, after the death of such former wife, Arthur Wells an* the appellant continued to live and cohabit as man and wife, continued to be recognized as such by the members of his family and by all others with whom they associated. During all those years the appellant discharged all the obligations imposed upon her by such [82] relation. She took care of her husband during sickness, kept house for and made a home for him. Upon these facts the question'arises, Is the app'ellant the widow of Arthur Wells and entitled to administer his estate ? '
Concededly the ceremonial marriage was void because at that time Arthur Wells had a lawful wife living and no rights in favor pf the appellant can be predicated upon it. After such impediment ceased to exist by the death of the former wife, did a common-law marriage take place between Arthur Wells and the appellant? In each of the States in which the parties resided a common-law marriage is recognized and, if established, is as effective and valid for all purposes as is a ceremonial marriage. ,
Does the evidence contained in the record in this case establish a common-law marriage between the appellant, Emma Wells, and the decedent, Arthur Wells, after the death of liis former wife, and such as to constitute them husband and wife from "that date ?• We think the question involved has. been decided by the courts of this and of the other States in which the parties resided, in accordance' with the appellant’s contention.
A common-law marriage is defined as any mutual agreement between the parties to be husband and wife inprcBsenti-, especially where it is followed by cohabitation, if there is no legal disability on. the part of either to contract matrimony. (2 Kent’s Comm. 87; Rose v. Clark, 8 Paige, 574, 580.) In that case the decision of the court is very clearly and concisely expressed in the head note, as follows: “ Any mutual agreement between a man and woman to be husband and wife in prcesenti, especially if followed by cohabitation, constitutes a valid and binding marriage; where there is no legal disability on the part of either to contract matrimony. An actual marriage may be presumed from matrimonial cohabitation, and the acknowledgments of the parties that they are husband and wife. And even' where such matrimonial cohabitation commenced between tlSb parties under a contract of marriage which was void, a subsequent' marriage after the removal of the disability may be presumed, from act's of recognition by the parties of each other as husband and wife, and from continued matrimonial cohabitation, and general reputation. But the mere fact that a man and woman live together, and carry on an illicit intercourse, is not sufficient to [83] raise a presumption that they are married. Such presumption only arises from matrimonial cohabitation; where the parties not only live together as husband and wife .but also hold themselves out to the world as sustaining that honorable relation to each other.”
" Ho language could be employed which, as it seems to me, could be more applicable to the facts in the case at bar. The impediment on the part of Arthur Wells, which prevented him from entering into the marriage state with the appellant, was removed, and after its removal, the parties lived together for a dozen years or more as husband and wife; they were held out to be such by each other and were so recognized by the friends and relatives of both.
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McLennan, P. J.:
On the 18th day of September, 1889, á ceremony of marriage' between the decedent, Arthur Wells, and the appellant, Emma Wells, whose maiden name was .Emiria Garrett, was performed at the city of Chicago, 111., by the Eev. A. K. Parker, pastor of the ■Centennial Baptist Church of said city, in the presence of witnesses, and in all respects in conformity with the laws of said State. ■ A certificate of such marriage, signed by the clergyman and by two wiri nesses, was put in evidence in this proceeding, and its genuineness is riot questioned. Neither is it suggested that the appellant did not consent to the performance of such ceremonial marriage in perfect good faith, fully believing it valid in all respects and that she thereby became the lawful wife of Arthur Wells. . Immediately upon the performance of such marriage Emma Wells commenced to live and. cohabit with Arthur Wells as his wife, and they sustained to each other the relation of husband and wife until his death,which occurred on the 24th day. of May, 1905. During all that' time the appellant was called and known as Mrs. Arthur Wells. They lived in the city of -Chicago for nearly two years after such marriage. They then moved to the State of Nebraska, where they resided for about three years,, when they returned to.the State of [81] Illinois where they remained until about February,. 1895, when they went to St. Paul, Minn., where they resided until 1903, when they again returned to Chicago, where they resided until the death of Arthur Wells.
It is thus seen that for more than fifteen years the appellant lived with and cohabited with Arthur Wells as his wife and there can be no question but that she understood and believed that the relation which she sustained to him during all that time was that of wife. During those years the decedent’s sister, Ella Rykert, the respondent, frequently visited at the home of these people, as did also the father and mother of Arthur Wells. In fact, his. mother lived in the home for a considerable time, died there, and Emma Wells, this appellant, and other members of the family went with the body of the mother, to the city of Niagara Falls, where she was buried. During all that time the respondent, the father and mother and other members of the decedent’s family, as well as all others who came in contact with them, treated and recognized the appellant as his wife. She was called “ daughter ” by the father and mother, “ sister ” by the respondent, and, as above stated, “ Mrs. Arthur Wells” by all.
It appears, however, that at the time the appellant married Arthur Wells he had a lawful wife living; that such wife had become insane and that he had placed her in an asylum near the city of Chicago, and that such wife lived about five years after the decedent’s marriage to the appellant. The appellant did not know of such former marriage or when the death, of such former wife occurred. She had never heard of her existence until shortly prior to the death of Arthur Wells. Neither does it appear expressly that the decedent ever knew of the death of his former wife; but it does appear without contradiction that such former wife in fact died within five years after the ceremonial marriage was performed between Arthur Wells and the appellant, and, as we have seen, after the death of such former wife, Arthur Wells an* the appellant continued to live and cohabit as man and wife, continued to be recognized as such by the members of his family and by all others with whom they associated. During all those years the appellant discharged all the obligations imposed upon her by such [82] relation. She took care of her husband during sickness, kept house for and made a home for him. Upon these facts the question'arises, Is the app'ellant the widow of Arthur Wells and entitled to administer his estate ? '
Concededly the ceremonial marriage was void because at that time Arthur Wells had a lawful wife living and no rights in favor pf the appellant can be predicated upon it. After such impediment ceased to exist by the death of the former wife, did a common-law marriage take place between Arthur Wells and the appellant? In each of the States in which the parties resided a common-law marriage is recognized and, if established, is as effective and valid for all purposes as is a ceremonial marriage. ,
Does the evidence contained in the record in this case establish a common-law marriage between the appellant, Emma Wells, and the decedent, Arthur Wells, after the death of liis former wife, and such as to constitute them husband and wife from "that date ?• We think the question involved has. been decided by the courts of this and of the other States in which the parties resided, in accordance' with the appellant’s contention.
A common-law marriage is defined as any mutual agreement between the parties to be husband and wife inprcBsenti-, especially where it is followed by cohabitation, if there is no legal disability on. the part of either to contract matrimony. (2 Kent’s Comm. 87; Rose v. Clark, 8 Paige, 574, 580.) In that case the decision of the court is very clearly and concisely expressed in the head note, as follows: “ Any mutual agreement between a man and woman to be husband and wife in prcesenti, especially if followed by cohabitation, constitutes a valid and binding marriage; where there is no legal disability on the part of either to contract matrimony. An actual marriage may be presumed from matrimonial cohabitation, and the acknowledgments of the parties that they are husband and wife. And even' where such matrimonial cohabitation commenced between tlSb parties under a contract of marriage which was void, a subsequent' marriage after the removal of the disability may be presumed, from act's of recognition by the parties of each other as husband and wife, and from continued matrimonial cohabitation, and general reputation. But the mere fact that a man and woman live together, and carry on an illicit intercourse, is not sufficient to [83] raise a presumption that they are married. Such presumption only arises from matrimonial cohabitation; where the parties not only live together as husband and wife .but also hold themselves out to the world as sustaining that honorable relation to each other.”
" Ho language could be employed which, as it seems to me, could be more applicable to the facts in the case at bar. The impediment on the part of Arthur Wells, which prevented him from entering into the marriage state with the appellant, was removed, and after its removal, the parties lived together for a dozen years or more as husband and wife; they were held out to be such by each other and were so recognized by the friends and relatives of both.
In the case of Fenton v. Reed (4 Johns. 52), in the statement of facts, it is said: “ The only point- in controversy was, whether the plaintiff was the widow of Beed. In the year 1785 she was the lawful wife of John Guest. Some time in that year Guest left the State for foreign parts and continued absent until some time in the year 1792, and it was'reported, and generally believed, that he had died in foreign parts. The plaintiff, in 1792, married Beed. In that year, and subsequent to the marriage, Guest returned to this ' State and continued to reside therein until June, 1800, when he died. * * * After the death of Guest the plaintiff continued to cohabit with Beed until his death in September, 1806, and sustained a good- reputation in society; but no solemnization of marriage was proved to have taken place between the plaintiff and Beed subsequent to the death of Guest.” It was held that upon the death of Guest a common-law marriage was established between the parties. The court, in its opinion, said : “ The marriage of the plaintiff below with William Beed during the lifetime of her husband, John Guest, was null and void. It was of no legal avail whatever, and not sufficient to constitute them husband and wife de facto. * * * Elizabeth Beed Avas, then, the lawful wife of Guest, and continued so until his death in 1800, and the true question is, whether there was evidence sufficient to justify the court below in concluding that she was afterwards married to Beed. * * * It is stated that there Avas not proof of any subsequent marriage imfact, and that no solemnization of marriage was shown to have taken place. But proof of an actual marriage was not necessary. Such strict proof is only required in prosecutions for [84] bigamy, and in actions for criminal conversation. (4 Burr. 2057;