The Chancellor.
The appellants’ counsel insists, among other things, that by the death of Mrs. Rose, within the time fixed by the revised statutes for calling the administrators to account, the whple estate of her deceased husband went to his next of :kin. In this, however, the construction which the counsel supposes to be given to the first and fourth subdivisions c f the seventy-fifth section of the title of the revised statqtes relative to the duties of executors and administrators m rendering an account and in making distribution to thye next of kin, is clearly wrong. Although the statute allows to the administrators eighteen months after the death pf the intestate to get in the estate, pay the debts,, and prepare for a final settlement of their accounts., it was not intended to prevent the vesting of the distributive shares of the widow and next of kin in the meantime. The English statute of distributions contained a similar provision, that no distribution of the estate/ of the intestate should be made till after one year from, his death, (22 and 23 Charles 2d, ch. 10, § 8, 2 Evans’ Stat. 359.) Yet, within a very few years from the passing of that statute, in the case of The Earl of [579]*579Winchelsea v. Norcliff, (1 Vern. Rep. 403,) the court of chancery decided that where a person entitled to a distributive share of the intestate’s estate died before distribution, and within the year, there was an interest vested ; and that his share should go to his executor or administrator. And such, I believe, has been the uniform construction of the statute of distributions ever since that decision. That the legislature in the recent revision did not intend to change the settled rule of law as to the time of the vesting of the distributive Shares Of the intestate’s personal estates, is also evident from the third, sixth, seventh and eighth subdivisions of this seventy-fifth section; which clearly refer to the death of the intestate, and not to the time when the distribution is actually required to be made. (2 R. S. 96.) The expression, “ if there be no widow,” in the fourth subdivision, must, therefore, be construed to relate to the time of the death of the intestate also ; so as to give her a vested interest in her distributive share of the estate, although she dies within the eighteen months allowed by the statute to the administrators to prepare for the settlement and distribution of such estate.
By the ancient common law of England, it seems that a marriage was invalid unless it was celebrated in facie ecclesice. Such was the decision in the case of Del Heith, decided in the beginning of the fourteenth century, (Easter Term, 34 Edw. 1;) the report of which case Sir Harris Nicolas has extracted from the Harlean Manuscript, No. 2117, fol. 339. (See Nicolas’ Adult. Bast. 31, 567.) And the decision in Foxcroft’s case, twenty-four years previous to that time, (Easter Term, 10 Edw. 1, 1 Roll. Ab. 359,) undoubtedly was placed upon the same ground ; and not upon any question of doubt as to the supposed husband being the real father of the child, as Lord Ch. J. Ellenborough and Lord Chancellor Eldon appear to have understood the decision in that case. (See King v. Luff, 8 East’s Rep. 299. Le Marchant’s preface to the Gardner Peerage case, 50. Nicolas’ Adult. Bast. 560.) The law on this subject, however, was unquestionably changed at [580]*580•the reformation, if not before. For it is now a settled rule of the common law which was brought into this state by its first English settlers, and which was probably the same among the ancient protestant Dutch inhabitants, that any mutual agreement between the parties to be husband and wife in presentí, especially where it is followed by cohabitation, constitutes a Valid and binding marriage ; if there is no legal disability on the part of either to contract matrimony. (2 Kent’s Com. 87.)
The only real question in this case therefore is, whether the surrogate was authorized to infer that such a contract of marriage had been made, subsequent to the death of Frink, from the facts and circumstances which were in evidence before him. That an actual marriage may be inferred, in ordinary cases, from cohabitation, acknowledgements of the parties, &c. as well as by positive proof of the fact, there can be no room to doubt. (See Math. on Pres. Evid. 283, and cases there cited.) And the only doubt in this case arises from the proof of the fact that the matrimonial cohabitation between these parties commenced, previous to the death of the first husband, under a contract of marriage which was absolutely void previous to the revised statutes ; although neither of them may have known at that time that Frink was still living. (Valleau v. Vallean, 6 Paige’s Rep. 210.) It appears, however, from decisions in our own courts as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation ; even where the parties originally came together under a void contract of marriage. The case of Wilkinson v. Payne, (4 Durn. & East’s Rep. 468,) carried the doctrine of presumption to a very great length on the subject. There the marriage was absolutely void under the English marriage acts; for the husband, whose parents were dead, was under age at the time the ceremony was performed, and had no legal guardian to consent to the marriage. And when he afterwards became of age his wife was upon her death bed, and actually died in three weeks [581]*581from, that time. But upon proof that the father of the wife, who was the defendant in that suit, and the rest of his family, had always treated them as husband and wife, Justice Grose, before whom the cause was tried, left it to the jury to presume a legal marriage after the husband was of age ; which they did. And the court of king’s bench refused to disturb their verdict. In Fenton v. Reed, (4 John. Rep. 52,) the question was, whether Mrs. Reed, the plaintiff in the suit before the justice’s court, was the widow of W. Reed; to whom she was married in 1792, upon the supposition that her first husband, who was then absent, was dead. It appeared by the evidence that the first husband returned soon after the marriage, and lived until June, -1800, when he died. But the wife continued to cohabit with Reed as her husband until his death, in 1806, and no solemnization of marriage was proved to have taken place between her and Reed subsequent to the death of the first husband. Yet the supreme court decided that the court below was authorized to presume a marriage subsequent to that time. The same principle of presumption was sustained by the supreme court in the subsequent case of Jackson v. Claw, (18 John. Rep. 346,) where the marriage took place while the first wife was living ; but where the matrimonial cohabitation continued for many years after she, from her continued absence, was presumed to be dead.
These cases I think fully sustain the decision of the surrogate in the case now under consideration. Here the parties lived together as husband and wife for more than seven years after the death of Frink, and sustained fair characters.
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The Chancellor.
The appellants’ counsel insists, among other things, that by the death of Mrs. Rose, within the time fixed by the revised statutes for calling the administrators to account, the whple estate of her deceased husband went to his next of :kin. In this, however, the construction which the counsel supposes to be given to the first and fourth subdivisions c f the seventy-fifth section of the title of the revised statqtes relative to the duties of executors and administrators m rendering an account and in making distribution to thye next of kin, is clearly wrong. Although the statute allows to the administrators eighteen months after the death pf the intestate to get in the estate, pay the debts,, and prepare for a final settlement of their accounts., it was not intended to prevent the vesting of the distributive shares of the widow and next of kin in the meantime. The English statute of distributions contained a similar provision, that no distribution of the estate/ of the intestate should be made till after one year from, his death, (22 and 23 Charles 2d, ch. 10, § 8, 2 Evans’ Stat. 359.) Yet, within a very few years from the passing of that statute, in the case of The Earl of [579]*579Winchelsea v. Norcliff, (1 Vern. Rep. 403,) the court of chancery decided that where a person entitled to a distributive share of the intestate’s estate died before distribution, and within the year, there was an interest vested ; and that his share should go to his executor or administrator. And such, I believe, has been the uniform construction of the statute of distributions ever since that decision. That the legislature in the recent revision did not intend to change the settled rule of law as to the time of the vesting of the distributive Shares Of the intestate’s personal estates, is also evident from the third, sixth, seventh and eighth subdivisions of this seventy-fifth section; which clearly refer to the death of the intestate, and not to the time when the distribution is actually required to be made. (2 R. S. 96.) The expression, “ if there be no widow,” in the fourth subdivision, must, therefore, be construed to relate to the time of the death of the intestate also ; so as to give her a vested interest in her distributive share of the estate, although she dies within the eighteen months allowed by the statute to the administrators to prepare for the settlement and distribution of such estate.
By the ancient common law of England, it seems that a marriage was invalid unless it was celebrated in facie ecclesice. Such was the decision in the case of Del Heith, decided in the beginning of the fourteenth century, (Easter Term, 34 Edw. 1;) the report of which case Sir Harris Nicolas has extracted from the Harlean Manuscript, No. 2117, fol. 339. (See Nicolas’ Adult. Bast. 31, 567.) And the decision in Foxcroft’s case, twenty-four years previous to that time, (Easter Term, 10 Edw. 1, 1 Roll. Ab. 359,) undoubtedly was placed upon the same ground ; and not upon any question of doubt as to the supposed husband being the real father of the child, as Lord Ch. J. Ellenborough and Lord Chancellor Eldon appear to have understood the decision in that case. (See King v. Luff, 8 East’s Rep. 299. Le Marchant’s preface to the Gardner Peerage case, 50. Nicolas’ Adult. Bast. 560.) The law on this subject, however, was unquestionably changed at [580]*580•the reformation, if not before. For it is now a settled rule of the common law which was brought into this state by its first English settlers, and which was probably the same among the ancient protestant Dutch inhabitants, that any mutual agreement between the parties to be husband and wife in presentí, especially where it is followed by cohabitation, constitutes a Valid and binding marriage ; if there is no legal disability on the part of either to contract matrimony. (2 Kent’s Com. 87.)
The only real question in this case therefore is, whether the surrogate was authorized to infer that such a contract of marriage had been made, subsequent to the death of Frink, from the facts and circumstances which were in evidence before him. That an actual marriage may be inferred, in ordinary cases, from cohabitation, acknowledgements of the parties, &c. as well as by positive proof of the fact, there can be no room to doubt. (See Math. on Pres. Evid. 283, and cases there cited.) And the only doubt in this case arises from the proof of the fact that the matrimonial cohabitation between these parties commenced, previous to the death of the first husband, under a contract of marriage which was absolutely void previous to the revised statutes ; although neither of them may have known at that time that Frink was still living. (Valleau v. Vallean, 6 Paige’s Rep. 210.) It appears, however, from decisions in our own courts as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation ; even where the parties originally came together under a void contract of marriage. The case of Wilkinson v. Payne, (4 Durn. & East’s Rep. 468,) carried the doctrine of presumption to a very great length on the subject. There the marriage was absolutely void under the English marriage acts; for the husband, whose parents were dead, was under age at the time the ceremony was performed, and had no legal guardian to consent to the marriage. And when he afterwards became of age his wife was upon her death bed, and actually died in three weeks [581]*581from, that time. But upon proof that the father of the wife, who was the defendant in that suit, and the rest of his family, had always treated them as husband and wife, Justice Grose, before whom the cause was tried, left it to the jury to presume a legal marriage after the husband was of age ; which they did. And the court of king’s bench refused to disturb their verdict. In Fenton v. Reed, (4 John. Rep. 52,) the question was, whether Mrs. Reed, the plaintiff in the suit before the justice’s court, was the widow of W. Reed; to whom she was married in 1792, upon the supposition that her first husband, who was then absent, was dead. It appeared by the evidence that the first husband returned soon after the marriage, and lived until June, -1800, when he died. But the wife continued to cohabit with Reed as her husband until his death, in 1806, and no solemnization of marriage was proved to have taken place between her and Reed subsequent to the death of the first husband. Yet the supreme court decided that the court below was authorized to presume a marriage subsequent to that time. The same principle of presumption was sustained by the supreme court in the subsequent case of Jackson v. Claw, (18 John. Rep. 346,) where the marriage took place while the first wife was living ; but where the matrimonial cohabitation continued for many years after she, from her continued absence, was presumed to be dead.
These cases I think fully sustain the decision of the surrogate in the case now under consideration. Here the parties lived together as husband and wife for more than seven years after the death of Frink, and sustained fair characters. The children also, who now contest the claim of the representatives of the widow, recognised her as the wife of the intestate, and called her mother; which they certainly would not have done if it had been understood in the neighborhood, or in the family, that her cohabitation with the father was meretricious ; as the intercouse with Owen some years previous probably was. The fact that she joined with the intestate in a conveyance of his land, subsequent to the death of Frink, for the purpose of barring her right [582]*582of dower, is also a strong circumstance in favor of the presumption that both parties at that time considered themselves as husband and wife. And the intestate ever after-wards called her his wife when speaking of her to others. The administrators also recognised her as the widow of the decedent, both in their petition for administration and in the inventory of the estate. After all that had transpired previous to the death of the intestate, I think he would have been precluded from denying that she was his wife, in January, 1838 ; according to the cases of Hervey v. Hervey, (2 Wm. Black. Rep. 877,) and Purcell v. Purcell, (4 Hen. & Mumf. 507.) And if the evidence wus sufficient to raise the presumption of a legal marriage as to him, in his life time, it must necessarily be sufficient to entitle her representative to the widow’s portion of the estate, under the statute of distributions.
To guard against any misconstruction as to the principle of presumption adopted in this and other cases of the same character, it may be proper to say, that the mere fact of a man and woman’s living together and carrying on an illicit intercouse, is wholly insufficient to raise a legal presumption of marriage; as it too often happens that such cohabitation takes place when the intercourse between the parties is clearly meretricious. The presumption of marriage only arises from matrimonial cohabitation; where the parties not only live together as husband and wife, but hold themselves out to the world as sustaining that honorable relation to each other. The first kind of cohabitation, from which -no presumption of marriage arises, although the man, under particular circumstances, sometimes may have attempted to give to his mistress a different character from that which she in fact sustained towards him, is fully illustrated by the case of Cunningham v. Cunningham, in the house of lords, upon an appeal from Scotland, (2 Dow’s, Parl. Rep. 482.) In relation to that case it is only necessary to remark that I fully concur in the conclusion at which Lord Eldon and Lord Redesdale arrived, and in the reasoning upon which that conclusion was based ; and which [583]*583are perfectly consistent with the decisions in the supreme court of this state to which I have referred.
The decree of the surrogate must, therefore, he affirmed with costs 5 and interest upon the amount decreed to be paid by the surrogate from the time of such decree, as damages for the delay and vexation caused by such appeal. (2 R. S. 618, § 35.) And if the amount decreed to be paid with costs and interest is not paid within the time prescribed by the order of the surrogate, the respondent is at liberty to have the decree of affirmance enrolled here, and to take out execution thereon.