Napton, Judge,
delivered the opinion of the court.
This case was here before on a demurrer to the petition, and the decision of the court will be found reported in 23 Mo. 561.
When the case returned to the land court, an answer was filed by the adult defendants, setting up the antenuptial settlement as an equitable bar to the claim for dower, and denying the several charges, made in the petition, of breaches of the contract and general bad faith on the part of Johnson, [84]*84and offering to pay the amount of money received by Johnson from his wife upon their marriage, as specified in his will, and whatever additional money might appear upon investigation to have belonged to the plaintiff originally, and to have been received by the testator.
This part of the answer, which tendered compensation of breaches of the antenuptial contract in the event that such breaches should be found by the court, was stricken out, and the court directed an issue to be tried by a jury: “ whether John W. Johnson died without descendants in being capable of inheriting his estate.” This issue was found, under instructions from the court, for the plaintiff, and the court, proceeding to a final hearing of the cause, found all the facts in conformity to the allegations of the petition, and gave judgment for the plaintiff, in accordance with her claim under the third section of the act of 1845 concerning dower, for one-lialf in fee of all the deceased husband’s real estate subject to his debts. After commissioners had been appointed to admeasure dower under this judgment, and had reported, a final judgment was entered to the same effect, and damages were assessed at $7,420.11.
The question of most importance, which presents itself in the outset of this case, is the one which arises upon the instruction given to the jury upon the trial of the issue of legitimacy. That instruction is, “ unless the jury find that John W. Johnson, and the Indian woman with whom he cohabited, mutually agreed to live their whole lives together in a state of union as husband and wife, it was not a marriage, nor are the children of such union capable of inheriting from the father.”
Col. Johnson, it appears from the testimony taken at the trial, was a government factor at Prairie du Chien in 1812, at that time a military post in the Indian country, and outside of the limits of any state. Whilst there, he formed a connexion with an Indian woman, the daughter of a chief named Keokuk, with whom he lived for several years, and by whom he had three children, daughters, named Rosella, [85]*85Mary and. Eliza. These children were brought up and educated by Col. Johnson in conformity to his circumstances and condition in life; were introduced into society, after their education was finished, as his daughters; remained inmates of his household after his removal to St. Louis in 1822, up to the period of their marriage, and were in all respects treated by him as a father would be expected to conduct himself towards his legitimate children, and were finally provided for in a will, which left to them or their descendants the bulk of his fortune, which amounted to about one hundred thousand dollars.
Shortly after his removal to St. Louis, Col. Johnson married the plaintiff, having left the mother of these children with her tribe, and it not appearing from the testimony whether she was living or not at the time of the marriage with the plaintiff. Some testimony was given at the trial explanatory of the custom of the Indians in relation to their marriages. It seems that there were connexions formed between the traders and the Indian women, which were regarded as marriages, and others which the witnesses did not so consider. What were the characteristics which distinguished the- one from the other did not very clearly appear; but there was no evidence that in either case the husband was not regarded as at liberty to leave his wife at his pleasure. Some of the witnesses testified in relation to the ceremonies which sometimes accompanied a marriage. There was no evidence in relation to the origin of the connexion between Col. Johnson and Tapissee (the woman with whom he lived), nor did it appear what the nature of the contract was between them, except as it was to be inferred from the facts stated above.
There is doubt that permanency enters into the idea of marriage as understood among all civilized and Christian people, and the proposition stated in the instruction of the land court is undoubtedly well sustained by writers who have discussed the subject of marriage. It may be further conceded that, even by the law of nature, a mere casual commerce between the sexes does not constitute a marriage. But when [86]*86there is a cohabitation, by consent, for an indefinite period of time, for the procreation and bringing up of children, that, in a state of nature, would be a marriage; and, in the absence of all civil and religious institutions, may safely be presumed to be, as it is termed by some writers, “ a marriage in the sight of God.” (Selford on Marriage & Div. p.-.) “ It has been made a question,” says this author, “ how long the cohabitation must continue by the law of nature, whether to the end of life. Without pursuing that discussion, it is enough to say that it can not be a mere casual and temporary commerce, but must be a contract at least extending to such purposes of a more permanent nature in the intentions of the parties.” (Id. p. 9.)
If permanency is to be regarded as an essential element of marriage by the law of nature, it is clear that all such con-nexions, which have taken place among the various tribes of North American Indians, either between persons of pure Indian blood, or between half breeds, or between the white and Indian races, must be regarded as a mere illicit intercourse, and the offspring be considered as illegitimate; for it appears to be well established by historians and travellers, as well as by the reported testimony in judicial proceedings occurring in the courts of some of our states, that in most of the tribes, perhaps in all, the understanding of the parties is that the husband may dissolve the contract at his pleasure. In a work published by Mr. Schoolcraft concerning the manners and customs of the North American Indians, under the authority of the government of the United States, the writer says: “ The marital rite is nothing more, among our tribes, than the personal consent of the parties, without requiring any concurrent act of a priesthood, or magistracy, or witnesses ; the act is assumed by the parties without the necessity of any other extraneous sanction except parental consent. Presents are, however, often made, if the parties are able. It is also disannulled and the wife dismissed from the wigwam whenever the husband pleases, or the marital state is continued under the evils of discord or a state of polygamy. The [87]*87latter is however tbe usual method among the hunter and prairie tribes. But the ties of consanguinity are still strictly acknowledged ; children become possessed of all their natural rights, and family tradition traces these to their remotest links.” In Robertson’s History of America, (book 4,) the same peculiarity is noticed as characterizing the contract of marriage as it prevailed among the natives of South America.
In the case of Wall v. Williamson, 11 Ala. 839, it appeared in evidence that, by the Choctaw law, the husband could dissolve the relationship at pleasure, and a marriage of this kind, within the limits assigned to that tribe, was held valid'.
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Napton, Judge,
delivered the opinion of the court.
This case was here before on a demurrer to the petition, and the decision of the court will be found reported in 23 Mo. 561.
When the case returned to the land court, an answer was filed by the adult defendants, setting up the antenuptial settlement as an equitable bar to the claim for dower, and denying the several charges, made in the petition, of breaches of the contract and general bad faith on the part of Johnson, [84]*84and offering to pay the amount of money received by Johnson from his wife upon their marriage, as specified in his will, and whatever additional money might appear upon investigation to have belonged to the plaintiff originally, and to have been received by the testator.
This part of the answer, which tendered compensation of breaches of the antenuptial contract in the event that such breaches should be found by the court, was stricken out, and the court directed an issue to be tried by a jury: “ whether John W. Johnson died without descendants in being capable of inheriting his estate.” This issue was found, under instructions from the court, for the plaintiff, and the court, proceeding to a final hearing of the cause, found all the facts in conformity to the allegations of the petition, and gave judgment for the plaintiff, in accordance with her claim under the third section of the act of 1845 concerning dower, for one-lialf in fee of all the deceased husband’s real estate subject to his debts. After commissioners had been appointed to admeasure dower under this judgment, and had reported, a final judgment was entered to the same effect, and damages were assessed at $7,420.11.
The question of most importance, which presents itself in the outset of this case, is the one which arises upon the instruction given to the jury upon the trial of the issue of legitimacy. That instruction is, “ unless the jury find that John W. Johnson, and the Indian woman with whom he cohabited, mutually agreed to live their whole lives together in a state of union as husband and wife, it was not a marriage, nor are the children of such union capable of inheriting from the father.”
Col. Johnson, it appears from the testimony taken at the trial, was a government factor at Prairie du Chien in 1812, at that time a military post in the Indian country, and outside of the limits of any state. Whilst there, he formed a connexion with an Indian woman, the daughter of a chief named Keokuk, with whom he lived for several years, and by whom he had three children, daughters, named Rosella, [85]*85Mary and. Eliza. These children were brought up and educated by Col. Johnson in conformity to his circumstances and condition in life; were introduced into society, after their education was finished, as his daughters; remained inmates of his household after his removal to St. Louis in 1822, up to the period of their marriage, and were in all respects treated by him as a father would be expected to conduct himself towards his legitimate children, and were finally provided for in a will, which left to them or their descendants the bulk of his fortune, which amounted to about one hundred thousand dollars.
Shortly after his removal to St. Louis, Col. Johnson married the plaintiff, having left the mother of these children with her tribe, and it not appearing from the testimony whether she was living or not at the time of the marriage with the plaintiff. Some testimony was given at the trial explanatory of the custom of the Indians in relation to their marriages. It seems that there were connexions formed between the traders and the Indian women, which were regarded as marriages, and others which the witnesses did not so consider. What were the characteristics which distinguished the- one from the other did not very clearly appear; but there was no evidence that in either case the husband was not regarded as at liberty to leave his wife at his pleasure. Some of the witnesses testified in relation to the ceremonies which sometimes accompanied a marriage. There was no evidence in relation to the origin of the connexion between Col. Johnson and Tapissee (the woman with whom he lived), nor did it appear what the nature of the contract was between them, except as it was to be inferred from the facts stated above.
There is doubt that permanency enters into the idea of marriage as understood among all civilized and Christian people, and the proposition stated in the instruction of the land court is undoubtedly well sustained by writers who have discussed the subject of marriage. It may be further conceded that, even by the law of nature, a mere casual commerce between the sexes does not constitute a marriage. But when [86]*86there is a cohabitation, by consent, for an indefinite period of time, for the procreation and bringing up of children, that, in a state of nature, would be a marriage; and, in the absence of all civil and religious institutions, may safely be presumed to be, as it is termed by some writers, “ a marriage in the sight of God.” (Selford on Marriage & Div. p.-.) “ It has been made a question,” says this author, “ how long the cohabitation must continue by the law of nature, whether to the end of life. Without pursuing that discussion, it is enough to say that it can not be a mere casual and temporary commerce, but must be a contract at least extending to such purposes of a more permanent nature in the intentions of the parties.” (Id. p. 9.)
If permanency is to be regarded as an essential element of marriage by the law of nature, it is clear that all such con-nexions, which have taken place among the various tribes of North American Indians, either between persons of pure Indian blood, or between half breeds, or between the white and Indian races, must be regarded as a mere illicit intercourse, and the offspring be considered as illegitimate; for it appears to be well established by historians and travellers, as well as by the reported testimony in judicial proceedings occurring in the courts of some of our states, that in most of the tribes, perhaps in all, the understanding of the parties is that the husband may dissolve the contract at his pleasure. In a work published by Mr. Schoolcraft concerning the manners and customs of the North American Indians, under the authority of the government of the United States, the writer says: “ The marital rite is nothing more, among our tribes, than the personal consent of the parties, without requiring any concurrent act of a priesthood, or magistracy, or witnesses ; the act is assumed by the parties without the necessity of any other extraneous sanction except parental consent. Presents are, however, often made, if the parties are able. It is also disannulled and the wife dismissed from the wigwam whenever the husband pleases, or the marital state is continued under the evils of discord or a state of polygamy. The [87]*87latter is however tbe usual method among the hunter and prairie tribes. But the ties of consanguinity are still strictly acknowledged ; children become possessed of all their natural rights, and family tradition traces these to their remotest links.” In Robertson’s History of America, (book 4,) the same peculiarity is noticed as characterizing the contract of marriage as it prevailed among the natives of South America.
In the case of Wall v. Williamson, 11 Ala. 839, it appeared in evidence that, by the Choctaw law, the husband could dissolve the relationship at pleasure, and a marriage of this kind, within the limits assigned to that tribe, was held valid'. The court says that “marriages among the Indian tribes must be regarded as taking place in a state of }iature ; and if, according to the usages and customs of the particular tribe, the parties are authorized to dissolve it at pleasure, the right of dissolution will be considered a term of the contract. Either party may take advantage of this term, unless it be expressly or impliedly waived by them; or they may perhaps acquire such relations to society as will give permanency to the contract and take from them the right to avoid it.” The same doctrine had been held by the court in the same case, reported in 8 Ala. p. 48.
In Tennessee, a marriage among the Cherokees, according to the usages of that tribe, within the limits of that state, was held valid. And it appeared that all that was necessary to constitute a marriage by these usages was a public agreement to live together as man and wife, and the fact that two persons did so live together was considered evidence of such agreement. In this case (Morgan v. McGhee, 5 Humph. 14,) the husband was a white man, and there were children of the marriage, and the supreme court, in passing on the case, observe: “ To hold this marriage to be void would be to vitiate all the marriages made in the nation, (Cherokee,) and might be productive of much mischief.” Proceeding, therefore, on the principle that the courts in Tennessee would recognize as valid all marriages of a foreign country made in pursuance of the forms and usages of that country, [88]*88they applied the doctrine to a marriage between a white man and an Indian, made within the Indian nation, conformably to the customs of the tribe.
Judge Story, in his work on the Conflict of Laws, considers marriage, as in its origin, a contract of natural law; that “ it is the parent and not the child of society that in all civilized countries'it becomes a civil contract regulated by law, and in many has superadded to it a religious obligation. So that the contract is a natural, civil or religious one, or embraces all these elements, according to the condition of society in which it occurs. It is plain that, among the savage tribes on this continent, marriage is merely a natural contract, and that neither law, custom or religion has affixed to it any conditions or limitations or forms other than what nature has itself prescribed. It can hardly be said that the power of divorce, in one or both of the parties to the contract, at his or her pleasure, is inconsistent with the law of nature. The fact, as we have seen, is otherwise. To what quarter shall we look for proofs of the law of nature, if we exclude the manners and customs of the American aborigines ?
It is well settled, as a general proposition, that a marriage, valid according to the law or custom of the place where it is contracted, is valid everywhere. (Story’s Conf. of Laws, § 113; 2 Greenl. Ev. § 460.) It is equally clear, both upon authority and upon general principles of public policy and natural equity, that where the legitimacy of children is called in question, especially after their death and after a great lapse of time, every reasonable presumption is indulged in favor of legitimacy. Very slight circumstances have been held sufficient to authorize a court or jury to find the existence of a marriage. In the case of Johnson v. Johnson, 1 Dessaus. 595, the testator had used an expression in his will which had a tendency to create a doubt as to his son’s legitimacy ; and the only proof to remove the suspicion was the simple fact that the father and mother had lived together as husband and wife, and were so considered in the neighbor[89]*89hood. Thirty years had elapsed, and all the parties were dead, and the illegitimacy of the son would let in the collateral relations of the deceased. The court of Chancery declared that “ to bastardize a person after his death was contrary to every principle of law, justice and equity,” and decreed accordingly in favor of the legitimacy of the son.
Where there has been a marriage de facto, and the parties to it are dead, although no direct proceeding can ever be had to invalidate it, yet if children have sprung from the union, the question of their legitimacy may incidentally and necessarily involve the validity of the marriage. Our statute has however, even in such cases, precluded the necessity of any | inquiries of this sort, by declaring the issue of all marriages ‘ deemed null in law to be legitimate. Under our law, upon an issue of legitimacy, the inquiry is limited to the mere fact of actual marriage; and upon this investigation, confining ourselves to the rules of evidence established before this significant change in the law, the jury are bound to make every intendment in favor of the legitimacy of the children not necessarily excluded by the proof. (Senser et al. v. Bower and wife, 1 Penrose & W. 452.) In the case of Cheseldine, lessee, v. Brewer, 1 Harr. & McH. 152, upon a question of legitimacy, the jury were instructed that if they found the reputed parents of the person claiming as heir had consented and agreed to be man and wife and had cohabited as such before the birth of the claimant, they should render their verdict for the plaintiff, and this direction of the court was sustained upon appeal. The supposed marriage had occurred in the state of Maryland, and of course, if it had in fact taken place, had been accompanied with the ceremonies and attended with the sanctions, civil and religious, which the laws of that state required.
The separation of Col. Johnson from the mother of his children can not, under the facts of this case, be regarded as tending to rebut the proof of a marriage. Such a separation, in ordinary cases, occurring between persons of the same race and in a civilized country, is undoubtedly compe[90]*90tent evidence to rebut the presumption arising from previous cohabitation. (Senser v. Bower et al., 1 P. & W. 452.) But the fact here, if established to be consistent with the usages among the Indians, not only in reference to their own marriages, but to intermarriages with the traders who sojourned with them, could have no tendency to overthrow the presumption arising from the previous cohabitation. It seems to be a right conceded to the husband by the terms of the contract, and its exercise can not therefore be regarded as inconsistent with it.
The declarations of Col. Johnson, reported by some of the witnesses, as made upon the eve of and perhaps subsequently to his marriage with the plaintiff, that he was a bachelor, are not entitled to any consideration. Such expressions are readily accounted for without being understood as indicating an intention to bastardize his children — an intention contradicted by all the acts of his life in reference to these children. His assumption and performance of parental duties, his care in providing for their education, his introduction of them into his household after his marriage with the plaintiff, their recognition in the social circle in which he moved, their marriage as his daughters, the liberal provisions for them in his will, and his solemn recognition of them in that instrument ; all these circumstances, without any question, so far as the testimony shows, being ever made of their legitimacy during the life of the father, certainly constitute presumptive evidence of a marriage, when its existence is questioned nearly fifty years after it is alleged' to have taken place, and i when two of the children are dead leaving heirs, and the father is dead without any other children, and his widow is also dead without children, either by her first or second husband.
We have not been able to perceive any good reason for striking out a portion of the defendant’s answer; but as the entire evidence in support of the defence is now before this court, the question becomes immaterial. We are satisfied, from the testimony, that the conduct of Col. Johnson has not [91]*91been such, in reference to the antenuptial agreement with tbe plaintiff, as to justify a specific performance of that agreement with a view to her exclusion from her legal right to dower. We do not allude to any charges of supposed illiberality to his wife during their marriage union, for there is no good ground for concluding that there was any serious disagreement or ill-feeling between them ; but the provisions of the will were certainly inadequate, and not a bona.fide execution of the contract. And as the testator, whether by the consent of his wife or not, thought proper so to invest the money received from her on the marriage, as to be entirely inaccessible to her for any of the uses contemplated by the antenuptial agreement, and it would be extremely difficult, if not impracticable, to trace the fund so used in the improvement of the testator’s real estate, and ascertain its present value, we concur in the conclusion of the land court that the right to dower was not barred.
It will be seen that, in our view of this case, the question of damages becomes immaterial. The death of the plaintiff having been suggested since the case came here, her representatives would be entitled to one-third of the rents and profits of the real estate of which her husband died seized, from the time of his death to the date of the assessment; together with such proportion of the slaves and personal property of the husband as they may be entitled to under the second section of the act of 1845 concerning dower. It is not intended by this opinion to debar the plaintiffs from taking under the antenuptial agreement, but, as the bill is not framed with that view, we consider it unnecessary to notice that branch of the subject.
The judgment is reversed and the case remanded.
Judge Scott concurs.