Rugg, J.
This is an action of contract to recover money alleged to have been had and received to the use of the estate of the plaintiff’s testator because obtained through the fraud of the defendant’s intestate. The fraud claimed was that the defendant’s intestate, under the name of Emma E. Ingalls, induced the plaintiff’s testator, Joseph Turner, to marry her and settle property upon her by falsely representing herself to be a single woman. There was evidence tending to show that the defendant’s intestate under the name of Emma E. Ingalls was from 1858 to 1870 the wife of Nelson N. Ingalls, living with him at Lowell in this Commonwealth; that in or before 1870 he had deserted her; that his place of residence was thereafter for some time unknown to her, and that at one time he had lived in New [503]*503Hampshire, but never afterwards in Lowell; that in 1870 she filed a libel for divorce against Ingalls, which was dismissed in 1873; that in 1874 she was married to Joseph Turner, having represented to him that she was a divorced woman, and lived with him in Lowell until his death on September 19, 1895. One Marsh testified that on September 5 or 6, 1888, he “knew from information from ” the defendant’s intestate that her first husband was at Bridgeport, Connecticut. “ She said something about his being down there ”; and that he thought he told the plaintiff “ something about his step-mother’s
The point at issue as the case was tried was whether the defendant’s intestate, at the time of her marriage with the plaintiff’s testator, was capable of entering into a valid marriage. The decision hinged upon the question whether at that time her former husband was living and undivorced. This was a fact to be determined upon all the evidence.
Plainly there was sufficient evidence to support a finding that he was then alive. He was living in 1870, three years before, and there was the testimony of the witness Marsh to the effect that he received information from the defendant’s intestate in 1888 that her first husband was then living in Connecticut. In view of this evidence it was error for the court to rule as matter of law that her first husband was not living in 1874 at the time of the second marriage of the defendant’s intestate.
It is said in the exceptions that the plaintiff’s testator, before the marriage now questioned, “ stated to his children, and others, that said Emma was a divorced woman and that she had told him she was a divorced woman.” This appears to have been admitted without objection, and, being then in, was entitled to its natural probative force. Assuming that this evidence was admitted under R. L. c. 175, § 66, as having been made in good faith upon the personal knowledge of the declarant, the direction of a verdict for the defendant was not warranted. The [504]*504question to be decided was whether the prior marriage of the defendant’s intestate was dissolved at the time of her marriage with the plaintiff’s testator. Proof that it was valid and subsisting was the burden assumed by the plaintiff, and this burden rested on him throughout the trial. Although there was oral testimony to the effect that this marital relation had been dissolved by divorce, it was nevertheless open to the plaintiff to argue that the statements to this effect were made by interested persons, who were mistaken, discredited, unreliable, deceived or deliberately attempting to deceive, and therefore not entitled to belief.
It is urged in support of the ruling, that the law has such a tender regard for solemnized marriage and for the assumption of innocence as to presume strongly that all apparent obstacles were removed so that its validity may be established. It has often been decided or intimated by way of dictum that death or divorce of one of the parties to a prior marriage will be presumed in order to support such a second one.* This train of cases appears to have had its origin in The King v. Twyning, 2 B. & Ald. 386, which “ has been much misunderstood” as is pointed out in Lapsley v. Grierson, 1 H. L. Cas. 498, 505, where it is explained. Where there is no extrinsic evidence either way, the legality of a marriage, like sanity, continuance of life, and regularity of acts of public officers, will be assumed. But where it is attacked and evidence is introduced tending to impeach it, then a question of fact arises to be proved in the light of all the circumstances and the reasonable inferences from them. The presumption of innocence is not so much stronger than any other as to compel the assumption of death or divorce in order to infer its existence. The unsoundness of such a contention becomes apparent when applied baldly to every conceivable state of facts. A marriage could not be ruled as a [505]*505matter of law to be valid by reason of the presumption of innocence, if other evidence showed that a month or a day before its solemnization one of the parties was living with a legal and youthful spouse of good health and non-dangerous employment. The law jealously regards the marriage relation and makes reasonable assumptions in its favor, but it has no special regard for second in preference to first marriage. The burden of proof in the absence of conflicting evidence may sometimes determine the result. The state of health, age, occupation or prospective journey of a given individual may warrant the inference of death within a brief time. But ordinarily whether one is alive on any given date, within the period of seven years of unexplained absence, is a fact to be determined upon all the probabilities arising in a particular case. Circumstances may exist, which would make reasonable the inference of a divorce. But there is no inflexible rule by which it can be invoked to protect subsequent nuptials. There is no absolute presumption of innocence, which will of itself prove the validity of a subsequent marriage in preference to the continuance of a former one. The validity or invalidity of the marriage drawn in question must be established, by the party upon whom the burden of proof is cast, upon all the facts with the reasonable inferences flowing from them. The law marks no particular consideration as of prevailing consequence in all cases. There is no “ sacramental force ” in the presumption of innocence over the presumption of the continuance of life or any other status in its nature likely to endure. Presumptions are rules of convenience based upon experience or public policy, and established to facilitate the ascertainment of truth in the trials of causes. There are a few instances of conclusive presumptions; but, where there are conflicting presumptions, one is not as matter of law stronger or weaker than another. The whole case then is thrown open to be decided as a fact upon all the evidence. It is for the sound judgment of the jury to weigh all the circumstances, including the characters of the persons involved and the probability of different lines of conduct, and determine where the truth lies as a matter of common sense unfettered by any arbitrary rule. Hyde Park v. Canton, 130 Mass. 505. Commonwealth v. McGrath, 140 Mass. 296, 299. State v. Plym, 43 Minn. 385. Reynolds v. State, [506]*50658 Neb. 49, 52. Williams v. Williams, 63 Wis. 58. Casley v. Mitchell, 121 Iowa, 96.
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Rugg, J.
This is an action of contract to recover money alleged to have been had and received to the use of the estate of the plaintiff’s testator because obtained through the fraud of the defendant’s intestate. The fraud claimed was that the defendant’s intestate, under the name of Emma E. Ingalls, induced the plaintiff’s testator, Joseph Turner, to marry her and settle property upon her by falsely representing herself to be a single woman. There was evidence tending to show that the defendant’s intestate under the name of Emma E. Ingalls was from 1858 to 1870 the wife of Nelson N. Ingalls, living with him at Lowell in this Commonwealth; that in or before 1870 he had deserted her; that his place of residence was thereafter for some time unknown to her, and that at one time he had lived in New [503]*503Hampshire, but never afterwards in Lowell; that in 1870 she filed a libel for divorce against Ingalls, which was dismissed in 1873; that in 1874 she was married to Joseph Turner, having represented to him that she was a divorced woman, and lived with him in Lowell until his death on September 19, 1895. One Marsh testified that on September 5 or 6, 1888, he “knew from information from ” the defendant’s intestate that her first husband was at Bridgeport, Connecticut. “ She said something about his being down there ”; and that he thought he told the plaintiff “ something about his step-mother’s
The point at issue as the case was tried was whether the defendant’s intestate, at the time of her marriage with the plaintiff’s testator, was capable of entering into a valid marriage. The decision hinged upon the question whether at that time her former husband was living and undivorced. This was a fact to be determined upon all the evidence.
Plainly there was sufficient evidence to support a finding that he was then alive. He was living in 1870, three years before, and there was the testimony of the witness Marsh to the effect that he received information from the defendant’s intestate in 1888 that her first husband was then living in Connecticut. In view of this evidence it was error for the court to rule as matter of law that her first husband was not living in 1874 at the time of the second marriage of the defendant’s intestate.
It is said in the exceptions that the plaintiff’s testator, before the marriage now questioned, “ stated to his children, and others, that said Emma was a divorced woman and that she had told him she was a divorced woman.” This appears to have been admitted without objection, and, being then in, was entitled to its natural probative force. Assuming that this evidence was admitted under R. L. c. 175, § 66, as having been made in good faith upon the personal knowledge of the declarant, the direction of a verdict for the defendant was not warranted. The [504]*504question to be decided was whether the prior marriage of the defendant’s intestate was dissolved at the time of her marriage with the plaintiff’s testator. Proof that it was valid and subsisting was the burden assumed by the plaintiff, and this burden rested on him throughout the trial. Although there was oral testimony to the effect that this marital relation had been dissolved by divorce, it was nevertheless open to the plaintiff to argue that the statements to this effect were made by interested persons, who were mistaken, discredited, unreliable, deceived or deliberately attempting to deceive, and therefore not entitled to belief.
It is urged in support of the ruling, that the law has such a tender regard for solemnized marriage and for the assumption of innocence as to presume strongly that all apparent obstacles were removed so that its validity may be established. It has often been decided or intimated by way of dictum that death or divorce of one of the parties to a prior marriage will be presumed in order to support such a second one.* This train of cases appears to have had its origin in The King v. Twyning, 2 B. & Ald. 386, which “ has been much misunderstood” as is pointed out in Lapsley v. Grierson, 1 H. L. Cas. 498, 505, where it is explained. Where there is no extrinsic evidence either way, the legality of a marriage, like sanity, continuance of life, and regularity of acts of public officers, will be assumed. But where it is attacked and evidence is introduced tending to impeach it, then a question of fact arises to be proved in the light of all the circumstances and the reasonable inferences from them. The presumption of innocence is not so much stronger than any other as to compel the assumption of death or divorce in order to infer its existence. The unsoundness of such a contention becomes apparent when applied baldly to every conceivable state of facts. A marriage could not be ruled as a [505]*505matter of law to be valid by reason of the presumption of innocence, if other evidence showed that a month or a day before its solemnization one of the parties was living with a legal and youthful spouse of good health and non-dangerous employment. The law jealously regards the marriage relation and makes reasonable assumptions in its favor, but it has no special regard for second in preference to first marriage. The burden of proof in the absence of conflicting evidence may sometimes determine the result. The state of health, age, occupation or prospective journey of a given individual may warrant the inference of death within a brief time. But ordinarily whether one is alive on any given date, within the period of seven years of unexplained absence, is a fact to be determined upon all the probabilities arising in a particular case. Circumstances may exist, which would make reasonable the inference of a divorce. But there is no inflexible rule by which it can be invoked to protect subsequent nuptials. There is no absolute presumption of innocence, which will of itself prove the validity of a subsequent marriage in preference to the continuance of a former one. The validity or invalidity of the marriage drawn in question must be established, by the party upon whom the burden of proof is cast, upon all the facts with the reasonable inferences flowing from them. The law marks no particular consideration as of prevailing consequence in all cases. There is no “ sacramental force ” in the presumption of innocence over the presumption of the continuance of life or any other status in its nature likely to endure. Presumptions are rules of convenience based upon experience or public policy, and established to facilitate the ascertainment of truth in the trials of causes. There are a few instances of conclusive presumptions; but, where there are conflicting presumptions, one is not as matter of law stronger or weaker than another. The whole case then is thrown open to be decided as a fact upon all the evidence. It is for the sound judgment of the jury to weigh all the circumstances, including the characters of the persons involved and the probability of different lines of conduct, and determine where the truth lies as a matter of common sense unfettered by any arbitrary rule. Hyde Park v. Canton, 130 Mass. 505. Commonwealth v. McGrath, 140 Mass. 296, 299. State v. Plym, 43 Minn. 385. Reynolds v. State, [506]*50658 Neb. 49, 52. Williams v. Williams, 63 Wis. 58. Casley v. Mitchell, 121 Iowa, 96. Northfield v. Plymouth, 20 Vt. 582, 590. Lapsley v. Grierson, 1 H. L. Cas. 498. Regina v. Willshire, 6 Q. B. D. 366, 370. The King v. Harborne, 2 Ad. & El. 540. Regina v. Lumley, L. R. 1 Cr. C. 196.
Inasmuch as Nelson N. Ingalls was absent and unheard of for more than seven years after the time to which the testimony of Marsh referred before the death of the plaintiff’s testator, so that the presumption of his death would arise, it would seem that the marriage here questioned might be upheld under R. L. c. 151, § 6, as having been entered into with good faith by Joseph Turner and followed by continued cohabitation after the removal of the impediment. This is a fact dependent upon evidence, and could not have been ruled as a matter of law. The effect of this circumstance, as well as the right which in any event the plaintiff may have in the proceeds of the insurance policies, are not before us.
Exceptions sustained.
The plaintiff was a son of Joseph Turner.