Opinion by
Rice, P. J.,
When the existence of a valid marriage relation is once established by proof it is to be presumed, ordinarily, that it continues to exist until the contrary is shown or until a different presumption is raised. Where this presumption comes in conflict with the presumption of the innocence of either of the parties in marrying a second time and of the legitimacy of the offspring of such marriage, the question arises which shall yield. If one of the parties has been absent from his or her domicil unheard of for seven years there is no difficulty. In such a case death is to be presumed: Francis v. Francis, 180 Pa. 644; but this presumption is subject to be rebutted, as it was in the present case, by proof that he was alive at the time of the second marriage: Thomas v. Thomas, 124 Pa. 646. But proof that he was alive is not positive proof that he was still the lawful husband of the woman to whom he was first married. That fact rests alone on the presumption of the continuance of a relation which might have been dissolved by divorce as well as by death. Upon that bare presumption the appellants’ whole case rests. In other words, they say, that Benjamin Andrews was married to Elizabeth in 1866, and was alive when she married John Shetzline in 1884; therefore, because of the presumed [441]*441continuance of a proved relation, the latter marriage was void, the child born of it was a bastard, and was incapable of inheriting from or through his father. Possibly, if there were'nothing further in the case, this presumption would neutralize the prima facie presumption in favor of the validity of the marriage directly in issue; although that has been denied in more than one case. But be that as it may, the proposition, that the former presumption must always prevail, in the absence of full proof of the dissolution of the first marriage, is not sustained by principle or the weight of authority. The circumstances of the particular case, although not in themselves amounting to full proof of the fact, may so aid the presumption in favor of innocence as to warrant the court in presuming the dissolution of the first marriage by death and even by divorce; or to put the proposition in a preferable form, in holding, that the burden of proving that it was not dissolved rests on him who asserts the illegitimacy of the offspring of the second marriage. Of the well considered cases which may be cited in support of this proposition — some of them go still further — are Blanchard v. Lambert, 43 Iowa, 228; Re Edwards, 58 Iowa, 431; Carroll v. Carroll, 20 Tex. 731 ; Coal Run Coal Co. v. Jones, 127 Ill. 379; Schmisseur v. Beatrie, 147 Ill. 310; Boulden v. McIntire, 119 Ind. 574; Hull v. Rawls, 27 Miss. 471; Klein v. Laudman, 29 Mo. 259 ; Hunter v. Hunter, 31 L. R. A. 411, and cases there cited. See also Rex v. Twyning, 2 B. & Aid. 386; Kelly v. Drew, 94 Mass. 107 ; Greensboro v. Underhill, 12 Vt. 604; Spears v. Burton, 31 Miss. 548; Wilkie v. Collins, 48 Miss. 496; Johnson v. Johnson, 114 Ill. 611; Orthwein v. Thomas, 127 Ill. 554; Sharp v. Johnson, 22 Ark. 79. Our own cases recognize the general principle, although none of them decides the precise question before us. In Breiden v. Paff, 12 S. & R. 430, the question was as to the validity of a deed made by A and B, his wife. It was proved that she had been married to D who was dead more than thirty years, and one of the plaintiff’s witnesses stated that she had had three husbands before marrying A. It was contended that a conveyance to which her legitimate husband was not a party, would not pass her estate, but Judge Gibson said: “I am of opinion, the court were right in leaving the jury to presume that the persons to whom she had been married previously to her marriage with [442]*442Paff were dead. In an old transaction like this, the fact of the second marriage is, of itself,-some evidence of the death of the-former husband. There are sometimes cases where it is unavoidably necessary to decide on the existence of facts, without a particle of evidence on either side, and if a decision in a particular way would implicate a party to the transaction in the commission of a crime, or any offense against good morals, it ought to be avoided; for the law will not gratuitously impute crime to any one, the presumption being in favor of innocence till guilt appear.” In Senser v. Bower, 1 P. & W. 450, the question was as to the legitimacy of the plaintiff. There was sufficient evidence of reputation and cohabitation to show that her father and mother were married in fact. “ But,” said Chief Justice Gibson, “there is said to be the same evidence of a precedent marriage of the mother with another man who was alive at her second marriage; and hence a supposed dilemma. But the proof being equal, the presumption is in favor of innocence ; and so far is this carried in the case of conflicting presumptions, that the one in faAror of innocence shall preAmil: Starkie on Ev. 749-753. It must be admitted that this principle is not immediately applicable here, inasmuch as there is no conflicting evidence, and the facts supposed to result are consistent Avith each other; but it establishes that the same proof that is sufficient to raise a presumption of innocence may be inadequate to a presumption of guilt. To say the least, then, the jury were not bound to draw the same conclusion of marriage from the same evidence, without regard to consequences; and to have instructed them that they Avere, Avould have been an error. On the contrary, they were bound to make every intendment in favor of the plaintiff’s legitimacy, which Avas not necessarily excluded by the proof.” So in Pickens’s Estate, Obenstein’s Appeal, 163 Pa. 14, Mr. Justice Fell said, “but if conflicting presumptions arose, that in favor of innocence and • legitimacy Avould prevail.”-
The declaration of Benjamin AndreAVS that the mother of the appellee was not his Avife; his marriage to another woman Avith whom he lived openly as his wife, and who was so recognized by his daughter; the terms of intimacy and friendship which existed between the mother of the appellee and her second hus-; band’s family during all the period of their marriage; their [443]*443recognition of her as his lawful wife, and of the appellee as his legitimate child, emphasized by a solemn promise made by one of the appellants to the father upon his death bed ; the lapse of time, during all which no question appears to have been raised by any one as to the validity of either of the second marriages, are facts which cannot be overlooked in determining such an issue as is presented here. They do not, of themselves, prove the dissolution of the first marriage, it is true, but they do show a probability of it, which, taken in connection with the presumption of innocence and legitimacy, neutralized the presumption that Benjamin Andrews was the lawful husband of Elizabeth at the time of her marriage with John Shetzline, and left the fact essential to the appellants’ claim not proven.
In answer to the question, how were they to prove that be was not divorced, it may be asked how was this appellee to prove that he was ? If he must prove it by the record it would be scarcely less difficult for him to ascertain the state and the court in which the decree was made, than for the appellants to prove the negative; and, it is to be borne in mind that even where guilt can be established only by proving a negative, the negative must in most cases be proved by the party alleging the guilt, unless the fact be one peculiarly within the knowledge of the other party.
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Opinion by
Rice, P. J.,
When the existence of a valid marriage relation is once established by proof it is to be presumed, ordinarily, that it continues to exist until the contrary is shown or until a different presumption is raised. Where this presumption comes in conflict with the presumption of the innocence of either of the parties in marrying a second time and of the legitimacy of the offspring of such marriage, the question arises which shall yield. If one of the parties has been absent from his or her domicil unheard of for seven years there is no difficulty. In such a case death is to be presumed: Francis v. Francis, 180 Pa. 644; but this presumption is subject to be rebutted, as it was in the present case, by proof that he was alive at the time of the second marriage: Thomas v. Thomas, 124 Pa. 646. But proof that he was alive is not positive proof that he was still the lawful husband of the woman to whom he was first married. That fact rests alone on the presumption of the continuance of a relation which might have been dissolved by divorce as well as by death. Upon that bare presumption the appellants’ whole case rests. In other words, they say, that Benjamin Andrews was married to Elizabeth in 1866, and was alive when she married John Shetzline in 1884; therefore, because of the presumed [441]*441continuance of a proved relation, the latter marriage was void, the child born of it was a bastard, and was incapable of inheriting from or through his father. Possibly, if there were'nothing further in the case, this presumption would neutralize the prima facie presumption in favor of the validity of the marriage directly in issue; although that has been denied in more than one case. But be that as it may, the proposition, that the former presumption must always prevail, in the absence of full proof of the dissolution of the first marriage, is not sustained by principle or the weight of authority. The circumstances of the particular case, although not in themselves amounting to full proof of the fact, may so aid the presumption in favor of innocence as to warrant the court in presuming the dissolution of the first marriage by death and even by divorce; or to put the proposition in a preferable form, in holding, that the burden of proving that it was not dissolved rests on him who asserts the illegitimacy of the offspring of the second marriage. Of the well considered cases which may be cited in support of this proposition — some of them go still further — are Blanchard v. Lambert, 43 Iowa, 228; Re Edwards, 58 Iowa, 431; Carroll v. Carroll, 20 Tex. 731 ; Coal Run Coal Co. v. Jones, 127 Ill. 379; Schmisseur v. Beatrie, 147 Ill. 310; Boulden v. McIntire, 119 Ind. 574; Hull v. Rawls, 27 Miss. 471; Klein v. Laudman, 29 Mo. 259 ; Hunter v. Hunter, 31 L. R. A. 411, and cases there cited. See also Rex v. Twyning, 2 B. & Aid. 386; Kelly v. Drew, 94 Mass. 107 ; Greensboro v. Underhill, 12 Vt. 604; Spears v. Burton, 31 Miss. 548; Wilkie v. Collins, 48 Miss. 496; Johnson v. Johnson, 114 Ill. 611; Orthwein v. Thomas, 127 Ill. 554; Sharp v. Johnson, 22 Ark. 79. Our own cases recognize the general principle, although none of them decides the precise question before us. In Breiden v. Paff, 12 S. & R. 430, the question was as to the validity of a deed made by A and B, his wife. It was proved that she had been married to D who was dead more than thirty years, and one of the plaintiff’s witnesses stated that she had had three husbands before marrying A. It was contended that a conveyance to which her legitimate husband was not a party, would not pass her estate, but Judge Gibson said: “I am of opinion, the court were right in leaving the jury to presume that the persons to whom she had been married previously to her marriage with [442]*442Paff were dead. In an old transaction like this, the fact of the second marriage is, of itself,-some evidence of the death of the-former husband. There are sometimes cases where it is unavoidably necessary to decide on the existence of facts, without a particle of evidence on either side, and if a decision in a particular way would implicate a party to the transaction in the commission of a crime, or any offense against good morals, it ought to be avoided; for the law will not gratuitously impute crime to any one, the presumption being in favor of innocence till guilt appear.” In Senser v. Bower, 1 P. & W. 450, the question was as to the legitimacy of the plaintiff. There was sufficient evidence of reputation and cohabitation to show that her father and mother were married in fact. “ But,” said Chief Justice Gibson, “there is said to be the same evidence of a precedent marriage of the mother with another man who was alive at her second marriage; and hence a supposed dilemma. But the proof being equal, the presumption is in favor of innocence ; and so far is this carried in the case of conflicting presumptions, that the one in faAror of innocence shall preAmil: Starkie on Ev. 749-753. It must be admitted that this principle is not immediately applicable here, inasmuch as there is no conflicting evidence, and the facts supposed to result are consistent Avith each other; but it establishes that the same proof that is sufficient to raise a presumption of innocence may be inadequate to a presumption of guilt. To say the least, then, the jury were not bound to draw the same conclusion of marriage from the same evidence, without regard to consequences; and to have instructed them that they Avere, Avould have been an error. On the contrary, they were bound to make every intendment in favor of the plaintiff’s legitimacy, which Avas not necessarily excluded by the proof.” So in Pickens’s Estate, Obenstein’s Appeal, 163 Pa. 14, Mr. Justice Fell said, “but if conflicting presumptions arose, that in favor of innocence and • legitimacy Avould prevail.”-
The declaration of Benjamin AndreAVS that the mother of the appellee was not his Avife; his marriage to another woman Avith whom he lived openly as his wife, and who was so recognized by his daughter; the terms of intimacy and friendship which existed between the mother of the appellee and her second hus-; band’s family during all the period of their marriage; their [443]*443recognition of her as his lawful wife, and of the appellee as his legitimate child, emphasized by a solemn promise made by one of the appellants to the father upon his death bed ; the lapse of time, during all which no question appears to have been raised by any one as to the validity of either of the second marriages, are facts which cannot be overlooked in determining such an issue as is presented here. They do not, of themselves, prove the dissolution of the first marriage, it is true, but they do show a probability of it, which, taken in connection with the presumption of innocence and legitimacy, neutralized the presumption that Benjamin Andrews was the lawful husband of Elizabeth at the time of her marriage with John Shetzline, and left the fact essential to the appellants’ claim not proven.
In answer to the question, how were they to prove that be was not divorced, it may be asked how was this appellee to prove that he was ? If he must prove it by the record it would be scarcely less difficult for him to ascertain the state and the court in which the decree was made, than for the appellants to prove the negative; and, it is to be borne in mind that even where guilt can be established only by proving a negative, the negative must in most cases be proved by the party alleging the guilt, unless the fact be one peculiarly within the knowledge of the other party. But the opinion of the court below is so full and satisfactory upon this point, and indeed upon all the questions, that, it seems to me, we might well have adopted it without further discussion.
Since writing the foregoing we have examined the unreported case of Van Dyke v. Barger (No. 83, May T. 1878, Middle District of Supreme Court) called to our attention by our Brother Bbavtsu who was of counsel. Upon a hasty examination it seemed to sustain the appellant’s contention, but upon a more careful consideration of its facts we think it fairly distinguish-, able from the present case in a very important particular. There, the question was as to the dissolution of the marriage tie between Alexander Van Dyke and Elizabeth McCleary.. The evidence showed, that shortly after their separation both, married a second time, and after the death of the second woman Alexander Yan Dyke married a third time. But both parties continued to reside in Pennsylvania, and their domicils were well known. If either party had obtained a divorce it would [444]*444have been an easy matter to prove it by a judicial or legislative record. It was of such a case that the Supreme Court, in distinguishing it from Senser v. Bower, supra, said: “ It is evident no such presumption arises here — and it is very different from presuming a divorce — which should only be by some legislative or judicial proceeding easily susceptible of proof, if it had existed.” The same cannot be said of the present case. For over ten years the domicil of Benjamin Andrews was unknown. The mother of the appellee supposed him to be dead, and was warranted in so presuming when she married a second time. The evidence showed that his second marriage was contracted in Kentucky, and when his daughter visited him he was domiciled in Illinois. The appellee furnished the best evidence of which the case in its nature was susceptible, taking into consideration all the circumstances. To require him to prove a divorce by the record of some court would be to compel him to trace Benjamin Andrews through all his wanderings and to search the records of all the courts of all the states where he may have been domiciled. This were to require an impossibility, as much so as to prove the death of a person who has been unheard of for seven years. The latter may be presumed, and is often presumed, in favor of innocence; why not the former ? Of necessity, resort must often be had to presumptive evidence, and it is not too much to say that the burden of proof is often placed, and shifted, not only because of the convenience of proving or disproving a fact in issue, but also upon grounds of public policy. ‘‘ Society rests upon marriage, the law favors it, and when a man and woman have contracted marriage in due form, the law will require clear proof to remove the presumption that the contract is legal and valid.” The presumption of the continuity of an established relation, or state, or condition, whether of marriage or any other, is a convenient rule of evidence, and, it is true, most frequently accords with the actual facts. But it is not an absolute and inflexible rule, and could not be so declared without breaking down other presumptions equally regarded in the law and based on as strong natural probability. We think it was so far weakened in the present case by the proved facts and the natural probabilities that grew out of them, that the court was justified in holding, that it was incumbent on the appellants to prove that Benjamin [445]*445Andrews was the lawful husband of the appellee’s mother at the time of her marriage to John Shetzline, and that they had failed to prove that fact.
There is nothing in the record of the proceedings to show that the auditing judge did not receive all the evidence that the appellants offered. After a regular marriage of the parents of the appellee was shown, the burden of proving that the parties had not legal capacity to marry, and that the issue was illegitimate, rested on the appellants. If they saw fit to go to final hearing without introducing or offering all the evidence they had upon that question, they took the risk, and having lost were not entitled to another opportunity to make out a stronger case.
The decree is affirmed at the cost of the appellants.
Beaver, J., dissents.