Lauderdale Peerage Claim

17 Abb. N. Cas. 439
New York Supreme Court·Decided July 15, 1885·Published·Cited by 2 cases

Opinion

Opinions.

—On the first point indicated in head-note (l),as

to change of domicile, the Earl of Selbokxe, after laying down the principle that “ The onus of proving a change of domicile, animo et facto,- lies upon those who assert it;” adverted to the [446] facts in detail, and concluded by saying : “It is not because-a-critical state of health may oblige a man to go, or to remain with the prospect of dying, abroad, that he can be held to have abandoned, either animo or facto, his domicile of ori- ■ gin/’

Upon this point, Lord Fitzgerald added : “The extent to which the -evidence must be carried to put an end to the domicile of origin is explained in clear terms in the Countess of Dalhousie’s Case,* and in Munro v. Munro, both of which were in this House, and are reported in Clark and Finnclly. It is not upon light evidence or upon a light presumption that we can act, but it must clearly appear by unmistakable evidence that the party who has a domicile of origin intends to part with it and intends to establish his domicile elsewhere.” '

On the point in head-note (3), that the law presumes the necessary prerequisites to have been performed in an apparently regular marriage, the Earl of Selborne said (after -supposing, for the purpose of argument, that banns and license were required by the New York law): “ There is a total absence of proof, direct or indirect, that in this case there was no publication of banns and no license. No doubt there is not affirmative proof, by registers or otherwise, of these things; but the registers of the marriages solemnized by the clergy of Trinity Church were not, at that time, regularly kept, and when they were kept it was not the practice to make any entries in them as to banns or licenses. If these preliminaries were necessary, the rule ‘ omnia, prcesumuntur rite acta ’ makes it your lordships’ duty to presume, under the circumstances of this case, that whatever was necessary was actually done. I cannot myself conceive any circumstances more properly requiring the application of that rule. No doubt this marriage was not (as in some of the cases mentioned at the bar), followed by cohabitation of the spouses, with habit and repute of married persons. That could not be, because the husband died within two days. But the whole object of Richard Maitland and Mary McAdam was to be lawfully married; his, to do justice before his death to his children, and to their [447] mother, then expecting antither child; hers, to obtain that status which nothing but lawful wedlock could confer. It cannot be supposed that they would knowingly neglect any legal requisite of marriage. "Whatever occasion there may have been for promptitude in fulfilling their purpose, it was not done in a clandestine manner ; the officiating minister was one of the husband’s executors, and his other executors (one of them apparently his man of business), were witnesses to the ceremony. The letter of August 4, 1772, shows that he had explained his intention to them beforehand. Dr. Ogilvic, beyond all question, must have known what was necessary for the validity of the marriage ; it was his duty to solemnize it in a legal, and not in an illegal, manner ; and, if the law of 1684 was in force," he would have been liable to heavy penalties if he had done- otherwise. It cannot rationally be suggested that the legal conditions of marriage, whatever they were, were not generally understood by educated Englishmen resident at New York in 1772, and especially by the clergy of the Protestant Episcopal Church there. Dr. Ogilvie himself was married by license. All probability is against the supposition that these things could have been omitted if they were necessary ; and there is nothing from which your lordships ought to infer, either (as far as I can see) that there was not sufficient time for publication of banns after Richard Maitland’s resolution was arrived at, or that there would, at any time before the marriage, have been any difficulty in procuring a license. The question is raised after the lapse of more than a century, and after the death of everyone who knew the real facts. Mary McAdam and her sons enjoyed the status of widow and of legitimate children, respectively, from July 13, 1772 (when Richard Maitland died), for the rest of their lives. The onus of proving that this marriage, solemnized defacto by a minister, and with the rites of the Church of England, was void for want of banns or license, and that (as a matter of fact) there was no publication of banns and no license, rests, in my opinion, upon those who say so. I cannot, myself, see that there is a scintilla of evidence to justify that conclusion."

Lord Blackburn said (after expressing the view that [448] license and banns were not necessary under the colonial law): “But I completely agree with what was said by the noble and learned Earl opposite [Selbobne] as to the general principle, that where there is a marriage proved to have been solemnized defacto one hundred and ten years ago, by people who intended that it should be a good marriage, who did it all bona fide and openly, every presumption ought to be made in favor of anything that was requisite having been done, if there was anything requisite, to give it validity and sanction. And consequently, if I thought that a license was necessary,—which I do not,—I think we ought infer that there was a license.

“I may observe, that although I say that I do not think a license was necessary, it does not, to my mind, by any means follow that there was not, or might not be, good ground for thinking that a license was, in fact, taken out. Dr. Ogilvie, although he might probably think that he would not be much blamed for performing the marriage in this way without a license, would know that he was doing something at least irregular, if a license was required and one had not been obtained, and, therefore, that it would be much safer and better to get a license; and, accordingly, one would probably have been got. If the marriage had been questioned a year or two afterwards, that would be no reason, I think, for assuming contrary to the fact, that there had been a license ; but it is an excellent reason, at the end of one hundred years, for not upsetting the marriage without any evidence at all, except merely the absence of affirmative evidence for presuming that there was not a license.”

On this point,Lord Watson said : “The actual celebration and subsequent repute of marriage are completely established, and the legal presumption, which in these circumstances arises in favor of marriage, the opposing claimant cannot rebut except by disproving every reasonable probability that there could have been an antecedent license.” He accordingly concurred in the opinion that the opposing claimant had failed to discharge himself of that burden. Lord Watson added (on the effect of family repute): “ At this distance of time, the family repute of marriage is an important item of proof in support of the fact of marriage ; but family belief or opinion [449] as to the legal effect of that marriage on the status of the claimant, which is purely a question' of law, cannot affect the decision of this case.”

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Lauderdale Peerage Claim, 17 Abb. N. Cas. 439 (N.Y. Super. Ct. 1885).

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