Jackson v. Jackson

34 L.R.A. 773, 33 A. 317, 82 Md. 17, 1895 Md. LEXIS 93

• Court: Court of Appeals of Maryland
• Decided: November 15, 1895
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

This case is now before us for the second time. The first appeal is reported in 80 Md. 176. The legal principles applicable to the controversy were then laid down, and upon a reversal of the judgment the cause was remanded for a new trial. A new trial was had resulting in the same verdict and judgment that were recorded on the first trial, and the same parties have again appealed who were the appellants on the former occasion. There was but a single issue involved, and that was whether the appellee is the legitimate daughter of Richard Watson Jackson, who died intestate some years ago. In passing on this issue two juries in different counties have found by their verdicts that she is. The record now before us contains twelve bills of exception, but it will not be necessary to review them separately, because they form several distinct groups, presenting but few questions which require any discussion.

The alleged marriage of the appellee’s mother and father, if it took place as has been twice found by separate juries, took place in the State of Pennsylvania. The evidence relied on to establish this marriage was general reputation, cohabitation and acknowledgment. The admissibility and sufficiency of such evidence to prove a marriage was fully considered on the former appeal, and we need not repeat here what was so recently decided there. There was no effort to prove as a distinct fact that the marriage had been performed with any religious ceremony. It is true that one of the witnesses in giving the declarations of the parties, stated that they, the mother and father of the appellee, upon' one occasion said they had been married by a minister of the gospel. But it must be borne in mind that the appellee, who was seeking to prove her legitimacy, did not set up a marriage of her parents at a particular place by a particular form or ceremony. Had she done this and failed she would not have been at liberty to rely on general repute to establish the alleged marriage. Barnum v. Barnum, 42 Md. 251. Assuming there was no religious ceremony proved or attempted to be proved, as there was not, it has been insisted with great zeal and earnestness that even if the marriage found by the verdict of the jury to have been contracted and consummated in Pennylvania were valid by the laws of that State, yet the legitimacy of the appellee, who was born in Pennsylvania, where her parents then lived, must be determined, not by the laws of that State, but by the law of Maryland; and that if, therefore, the marriage were, by reason of the failure to show there had been some religious ceremony, one that would not on that account have been valid under the statutes of' Maryland, the issue of such a marriage would in Maryland be illegitimate even though the marriage of which that issue was the fruit were conceded to be perfectly valid in the State where it was contracted and consummated. And the case of Doe on the demise of Birtwhistle v. Vardill, 5 B. & C. 438, was much pressed upon us to support that view. But that case and others founded on the same settled principle are clearly distinguishable from the case at bar. It is a maxim as old as the common law that hoeres legitimas est quern miptice demonstrant. A marriage, if valid where solemnized, is, in general, valid everywhere, and of necessity the offspring of that marriage would be treated as legitimate wherever the marriage itself would be regarded as valid. But a local statute which makes an illegitimate child, or a child born out of wedlock, legitimate upon certain prescribed conditions, such as the subsequent marriage of the parents and the recognition of the child as theirs, can have no extra territorial operation, and therefore cannot give to such child in another jurisdiction an inheritable status not accorded to it by the law of the latter jurisdiction. By the law of England a child born out of wedlock was a bastard. By the law of Scotland the subsequent marriage of the father and mother, and their recognition of the child as theirs legitimated the child. But that statute could not operate upon real estate in England where the law gave to such a marriage no effect as legitimating prior bom children. The same principle was decided in Barnum v. Barnum, 42 Md. 251, and Smith v. Derr, 34 Pa. St. 126. We have said that in general a marriage valid where performed is valid everywhere. To this broad rule there are, however, exceptions. “ These exceptions or modifications of the general rule may be classified as follows : First, marriages which are deemed contrary to the law of nature as generally recognized in Christian countries; second, marriages which the local lawmaking power has declared shall not be allowed any validity. * * * To the first class belong those which involve polygamy and incest; and in the sense in which the term incest is used, are embraced only such marriages as are incestuous according to the generally accepted opinion of Christendom, which relates only to persons in direct line of consanguinity, and brothers and sisters. The second class, i. e. those prohibited in terms by the statute, presents difficulties that are not always easy of solution, and have led to conflicting decisions. This class may be subdivided into two classes; first, where the statutory prohibition relates to form, ceremony and qualification, it is held that compliance with the law of the place of marriage is sufficient; and its validity will be recognized, not only in other States generally, but in the State of the domicil of the parties, even when they have left their own State to marry elsewhere, for the purpose of avoiding the laws of their domicil. Instead of being called a subdivision of the second-class of exceptions, it would be more accurate to say that it is" an exception to the exception and falls within the operation of the general rule first announced, of 'valid where performed, valid everywhere.’ To the second subdivision of the second-class of exceptions belong cases which, prohibited by statute, may or may not embody distinctive State policy, as affecting the morals or good order of society.” Pennegar v. The State of Tennessee, 87 Tenn. 244; S. C. with copious notes, 2 L. R. A. 703; State v. Tutty; State v. Ward, 41 Fed. Rep. 753; S. C., 7 L. R. A. 50; Brook v. Brook, 9 H. L. C. 193; Com. v. Graham, 16 L. R. A. 580; S. C., 157 Mass. 73. It is obvious, then, as there is no statute in Maryland declaring that a marriage of whose existence there is no other proof than general reputation shall be void; and as at most the statutory provisions relative to the methods of solemnizing marriages in Maryland relate to form and ceremony only, the Courts of this State will recognize the Pennsylvania marriage as valid if that marriage is valid by and under the laws of the latter Commonwealth and does not contravene the declared policy of our own positive law. We are not to be understood as speaking of marriages tolerated elsewhere but denounced by our own positive State policy as affecting the morals or good order of society. Such marriages, however, regarded elsewhere would not be treated as valid here. For instance: The statutes of Maryland peremptorily forbid the marriage of a white person and a negro and declare all such marriages forever void. It is, therefore, the declared policy of this State to prohibit such marriages. Though these marriages may be valid elsewhere, they will be absolutely void here so long as the statutory inhibition remains unchanged. But the question before us does not belong to such a category. At most all that is asserted against the validity of the alleged marriage of the appellee’s parents has reference to form or ceremony, and these, as we have seen, do not cause a marriage to fall within any of the exceptions 'to the general rule that a marriage valid where performed is valid everywhere. These views merely supplementing what we said in 80 Md. sufficiently answer the objections to and the criticisms upon the instructions granted by the Court below at the instance of the appellee; and without going into a further examination of these instructions, we content ourselves with saying there was no error committed in giving them.

The rejected prayers of the appellants were properly refused. The whole law of the case was fully, fairly and clearly put before the jury in the instructions given at the instance of both parties. The hypothesis assumed in the appellant’s second prayer, that the intercourse between the appellee’s mother and father was illicit in the beginning, was not supported by a particle of evidence, and it would have been error to allow vague conjectures to be indulged in by the jury on that subject. The third prayer was faulty in submitting to the jury to find that the appellee undertook to prove that a marriage took place between her father and mother at Chester, Pennsylvania. The record does not show that she set up any such marriage. As already mentioned, there was some allusion by a witness to a statement made by the parents of the appellee as to the place where they were married; but the appellee never attempted to assert that a marriage was actually solemnized at Chester. These observations dispose of all the questions raised by the twelfth exception.

This brings us to the eleven exceptions involving the rulings of the Court on questions of evidence.

The first exception was taken to the ruling of the Court allowing a witness to prove the law of Pennsylvania, as to the requisites of a valid marriage in that State, in the years 1872 and 1873. The witness was a lawyer of that State, and had- deposed that he was familiar with the law there. We think, under repeated adjudications, he was competent to give evidence. Jackson v. Jackson, 80 Md. 176.

With reference to the second, third and sixth exceptions, it is only necessary to say that the answers are not set forth in the record, and we are therefore unable to decide whether, even if the questions were conceded to be inadmissible, any injury was done to the appellants. Where the answers are not given, it cannot be assumed that they were prejudicial to the appellant. If not prejudicial they could cause no injury, and unless injury and error both appear there is no ground for reversal. The question objected to in the fourth exception was not competent. It appeared that after the father and mother of the appellee had lived together several years, and after the birth of the appellee they separated. In the fourth exception a witness was asked whether he knew the general reputation of the appellee's mother after the separation for chastity, while she and Jackson were living together. Whilst evidence of her general reputation for chastity, before the alleged marriage and during the period she lived with Jackson as his reputed wife, was admissible to rebut the presumption of marriage (Jackson v. Jackson, supra), it was manifestly irrelevant to adduce evidence of such a reputation after the parties had separated and had ceased to live together. As offered it would have been allowing evidence of a reputation that she had had a reputation for the want of chastity at some antecedent time. It was not evidence of a general reputation for unchasteness, but evidence of a reputation that she had had such a reputation. It was consequently not evidence of a reputation at all. For the same reasons there was no error in the ruling complained of in the eighth exception. The fifth exception was abandoned. The objection urged to the evidence set forth in the seventh and ninth exceptions goes to the value and not to the admissibility of the evidence. If admissible, as it was, its value was for the jury. The tenth and eleventh exceptions present the only question remaining to be considered. In the tenth a witness was asked, “do you know of any reputation in the community of Salisbury on the subject of their marriage, at the time they were living together ? If yea, was that a general reputation or a divided reputation ? ” In the eleventh the question objected to was, “ was there or not a divided reputation in the community of Salisbury as to the subject of their being married, while they lived together as man and wife?” Both of these questions were excluded. A reputation to be a provable reputation at all, must be a general reputation. It may be either one of two opposites ; for instance, either good or bad. It cannot be intermediate ; that is, partly one and partly the other, for that would not be general, and there would then be no general reputation either way. If it is generally good or generally bad, or as applicable to the case at bar, if a man and woman are generally reputed to be married, or if the converse is generally asserted, a general reputation one way or the other exists, and of a general reputation, and none other, the law allows evidenee to be given. But if it be not general, then obviously it does not exist as a fact, and evidence cannot be received to show a partial, limited or qualified repute. ■ When the Courts employ the term “ divided reputation,” it is not meant that an individual can have such a .thing as two opposite general reputations at the same time. A condition of that sort is an impossibility. A reputation cannot be general if it is not general, and no reputation of a marriage but a general reputation is competent evidence to establish marriage. General reputation, whether affirmative or negative, is a fact to be proved like any other fact within the knowledge of witnesses, by the witnesses who know it. If it exists at all it exists as a fact That which goes to make it up is hearsay, but that which the hearsay does make up is a fact. Now when parties are generally reputed to be man and wife, the general reputation thus asserted is a fact. If the witness called to establish that fact does not know that such a general reputation prevails in the community, he does not know the parties’ general reputation on that subject, and of course he can give no evidence of it. Necessarily the method to disprove such an asserted fact must be by witnesses equally competent to speak; and hence, unless the witness knows or can say that the particular person has no general reputation, on that particular subject he cannot testify that no general reputaion exists. A divided reputation, which is but the result of conflicting evidence as to a general reputation, is not a distinct, substantive, provable fact, for it is a mere deduction from proved facts. The existence of a diversity of opinion is one of the means by which a witness may know there is no general reputation ; but this means of knowledge, apart from the fact that there is or is not a general reputation, and as a totally independent circumstance, is not the thing to be proved. Hence, to ask the witness whether there is a divided reputation, is to ask him, not whether he knows a provable fact — a general reputation one way or the other — but merely what is one source of knowledge without reference to whether he possesses the knowledge itself. He may testify if he can that the parties were generally reputed not to be married; or, having equal means of knowing that they had a general reputation as other witnesses who have testified that the parties did have such a general reputation, he has never heard it discussed or spoken of. In the one instance he would testify to a fact just as the witnesses who depose in the opposite way. In the other instance he would depose to facts which if believed by the jury would tend to discredit the evidence to establish a general reputation. But in neither instance could he be permitted to say that there was a divided reputation, for that is nothing more than the result of the witness’ conclusion from his own comparison of conflicting opinions. There was, therefore, no error committed by the rulings in these exceptions. Finding no error in any of the rulings excepted to, they will be affirmed.

(Decided November 15th, 1895.)

Rulings affirmed with costs in this Court and cause remanded.