Jackson ex dem. Van Buskirk v. Claw

18 Johns. 346

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. The only question reserved for the consideration of the Court, is whether the lessor of the plaintiff was the wife of John A. Van Buskirk, at the time of his deaths It is not pretended, if she was his wife, that she is not entitled to recover. It appears that Van Buskirk and the lessor cohabited as man and wife, at and near Cocksackie, between thirty-five and forty years, and hada number of children, the eldest of whom is about thirty-seven years old. On the part of the defendant, it was found, that Van Buskirk, in 1779, cohabited with a woman of the name of Jane Blauw, whom he called his wife. They both said that they were married, and had a son, whom they called John. They lived together in Fishkill,unt\\ 1780, when they removed to New Marlborough. In 1781, Van.Buskirk returned to Fishkill, and said, that he and his wife had parted, and that she had gone to Long-Island, to her friends. Within six months thereafter* Van Buskirk and the lessor were married, and removed from Fishkill to Athens. None of the witnesses have seen Jane Blauw since 1780. One of them heard of her upon Long-1 stand, in 1783, on her way to Nova-Scotiaand since that time she has not been heard of. Cohabitation and declarations of the parties, afford strong prima facie evidence of a marriage in fact; but, in the present case, the presumption is encountered by strong facts, producing very great doubt of an actual marriage. Without any apparent rupture between Van Buskirk and Jane Blauw, they éepara-ted, nearly forty years ago, without any claims or pretensions upon each other that they were husband and wife. It seems to me a jury would have been authorized to say, that their intercourse and cohabitation was meretricious. It is not. necessary to the decision of this cause to place the plaintiff’s rights on that ground. . Jane Blauw went to Nova-Scotia in 1783, and has never been heard of since. She must be presumed to have died at the end of seven years from that period. This was so decided in the case of King & Mead v. Paddock,

* from the analogy to the statutes with respect to leases dependant on lives, and the statute of bigamy, and in conformity to the cases there referred to. Still, the marriage between Van Buskirk and the lessor, if Jane Blauw was the wife of the lessor, would void, as it took place during her life. Upon the authority 0f the case of Fenton and Reed, (4 Johns. Rep. 52.) tve have a right to presume a marriage between Van Buskirk and the lessor, at any time subsequent to the period, when we are to presume Jane Blauw to be actually dead ; and this period would be 1790. In the case of Fenton and Reed, the plaintiff and Reed were married during the life time of her former husband, and that marriage was held to be null and void. Guest, the former husband, died in 1800. After his death, the plaintiff continued to cohabit with Reed until 1806, when he died. The Court said there existed strong circumstances, from which a marriage, subsequent to the death o(Guest, might be presumed. The parties cohabited together, as husband and wife, from 1800 to 1806, and under the reputation and understanding that they were such, and the wife sustained a good character in society. A jury, we said, would be warranted to have inferred an actual marriage. In the present case, from 1790 to 1817, a period of twenty-seven years, there was cohabitation, the reputation of a marriage, and a good character in society. There are, therefore, much stronger grounds for the presumption of an actual marriage, after the presumed death of Jane Blauw, than in the.case cited, (a)

Judgment for the plaintiff.

Ante,p‘

Vide Doe v. Jesson, (6 East, 80. 84.) per Lord Ellenborough. Hopewell v. De Pinna, (2 Camp. N. P. Rep. 113.) In the case of The King v. the Inhabitants of Twyning, (2 Barn. & Ald. Rep. 385.) Ray-ley, J. said, that the law always presumed against the commission of a crime; and, therefore, where, as in that case, a woman, whose husband had enlisted as a soldier, and went abroad, and had not been heard' of since, within twelve months after the departure of her first husband, married a second husband, and had children by him, the second marriage was held to b e prima facie valid ; it being presumed, that the first husband was dead when the second marriage took place; and that it lay on the party objecting to the second marriage, to prove that the first husband was alive. (Vide, also, Phillips on. Evidence, 151. 10 East* 216.>