First Department, December, 1920. [Vol. 194. N. Y. 98.) The difficulty in holding that the union between the parties was valid as a common-law marriage arises from the fact that the element of intent and mutual consent of the parties to adopt such a relationship is entirely wanting. The plaintiff and the defendant, so far as the evidence discloses, believed that they were wedded through a ceremonial marriage, and there was no mutual consent to the marriage relation, except by virtue thereof. The two essentials of a commonlaw marriage are capacity and mutual consent. At common law the marriage relation may be formed by words of present assent, per verba de præsenti, and without the interposition of a clergyman or person lawfully authorized to perform the marriage ceremony. To constitute a marriage per verba de præsenti, the parties must be in each other's presence when the agreement is made. The agreement, however, need not be in the presence of witnesses. It may be expressed by parol, or the parties may adopt whatever ceremony their choice or religious belief may suggest. The vital element is the agreement itself, in whatever form it is adopted, which constitutes the contract and creates the relation. Notwithstanding the difficulty in sustaining the judgment appealed from upon the decision of the court as made at the close of the trial, nevertheless, I think the judgment can and should be sustained upon the ground that the plaintiff failed to establish the cause of action set forth in his complaint. The plaintiff, as before stated, relied at the trial upon the presumption that having shown that the former husband was living at a time less than five years prior to the marriage of the parties herein, he was presumed to be alive at the time of the second marriage. The presumption of life is well known in law. Having been shown to have been living at the time of his marriage with the defendant, the law presumed that Johnson continued to live until the contrary was shown. Ordinarily a person absent and not heard of is presumed to be living until five years have elapsed. Then the presumption is that he is dead. The defendant's second marriage occurred three years and two months after Johnson was shown to be alive and there was no direct evidence of his death. Notwithstanding such presumption of continuance of life, there always attaches to a marriage a presumption that the same . t App. Div.] First Department, December, 1920. was valid and legal in all respects. Thus we have here the presumption of life opposed by the counter presumption that the marriage between the parties was an innocent and valid one. Treating this subject, Bishop in his excellent treatise on Marriage, Divorce and Separation (Vol. 1), says: "§ 949. When the validity of a marriage depends on the death of a former husband or wife, and there is no direct proof of this fact, the presumption of life antagonizes that of innocence, and both variously combine with the circumstances special to the case. The two presumptions coming thus into conflict, the question will be which in the particular instance must give way. Thus, "§ 950. A person absent and not heard of is ordinarily presumed to be living until seven years have elapsed, then the presumption is that he is dead. But there is no presumption that the life continued during the entire period, or that it was extinguished at any particular time within it. Nor is the rule of seven years absolute; any circumstances may be shown creating a probability that life did not continue so long; or, on the other hand, special facts may neutralize the presumption though seven years have elapsed. Thereupon § 951. If, while this presumption of the continued life of an absent party to a marriage remains, the other enters into a second marriage, the presumption of the innocence of such marriage operates as a counter presumption of death. Should it be urged that in natural reason the marriage does not render the death more probable, the reply is that actual belief and conclusion from presumption are not necessarily identical, yet truly the marriage is an added ground for inferring death. For right-minded men and women, as all are assumed to be, will not knowingly commit polygamy. And one who has lived in matrimony with another can judge better than a stranger of the probabilities of the other's death under the special facts best known to him; so that in the particular instance his conclusion is more likely to be right than the general rule of the law, which was framed by strangers for the average person and case. * § 952. There is no absolute rule that either one of these conflicting presumptions shall give way to the other, but the leaning of the law is to innocence. Thus, First Department, December, 1920. [Vol. 194. § 953. If a married partner has been absent and unheard of less than seven years, then the other marries, the law has no unyielding result, but in a general way favors the presumption of innocence, making the second marriage good. Yet the question of life or death is, under proper supervision of the court, of fact for the jury. And a finding was sustained which upheld a marriage entered into after one year's absence; and another, which refused to uphold it when celebrated within twenty-five days after the absent party was known to be alive. * The same learned text writer says (§ 955): "In conclusion of this sub-title, if, when the suit is brought, more than seven years have elapsed since the absent person was last heard of, there is strictly no conflict of presumption with presumption. Without calling in the presumption of innocence, he is now to be deemed dead. It is not now, therefore, pressing the presumption of innocence very far to place the time of the death near that of the disappearance, instead of leaving it to vibrate in uncertainty between such disappearance and the end of the seven years.” With relation to the general presumption favoring marriage the same writer says (§ 956): "This presumption, expressed in the maxim Semper præsumitur pro matrimonio, is spoken of in an early chapter. Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality, not only casting the burden of proof on the party objecting, but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void. So that this issue cannot be tried like the ordinary ones, which are independent of this special presumption. And the strength of the presumption increases with the lapse of time through which the parties are cohabiting as husband and wife. It being for the highest good of the parties, of the children, and of the community, that all intercourse between the sexes in form matrimonial should be such in fact, the law, when administered by enlightened judges, seized upon all probabilities, and presses into its service all things else which App. Div.] First Department, December, 1920. can help it, in each particular case, to sustain the marriage, and repel the conclusion of unlawful commerce." And in conclusion, he says (§ 958): "This doctrine explains why, as between the two presumptions of innocence and life, the law prefers the one which makes the marriage good. It extends through the entire law of marriage, and casts its weight beneficially into the balance when other considerations are conflicting, or their effect is doubtful." Authorities by way of judicial decision are not wanting where the courts have applied the principle that the presumption of innocence in support of the marriage relation overbears that of life. It was said in Teter v. Teter (101 Ind. 129) that the presumption in favor of marriage and of the legitimacy of children is one of the strongest known to the law. In Hynes v. McDermott (91 N. Y. 451) Judge ANDREWS, writing the unanimous opinion of the Court of Appeals, said (at p. 458): " The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. In Morris v. Davies (5 Cl. & Fin. 163) Lord LYNDHURST, speaking of this presumption, says: The presumption of law is not lightly to be repelled. It is not to be broken in upon, or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.' In Piers v. Piers (2 H. L. Cas. 331) Lord CAMPBELL said, that the presumption could be negatived only by disproving every reasonable possibility,' and Lord BROUGHAM, in the same case, approved the general doctrine stated by Lord LYNDHURST, in Morris v. Davies, and said that the presumption could be dispelled only by evidence which was 'clear, distinct and satisfactory.'' Among English cases other than those cited by Judge ANDREWS, the case of The King v. Inhabitants of Twyning in Gloucestershire (2 Barn. & Ald. 386) is directly in point. In that case there was involved a settlement of Mary Burns, a First Department, December, 1920. [Vol. 194. pauper, and two children of herself and one Francis Burns, from the township of Manchester to the parish of Twyning in the county of Gloucester. Seven years prior thereto the pauper, Mary Burns, had married one Richard Winter, with whom she lived a few months when he enlisted as a soldier and went abroad on foreign service and was never thereafter heard from. A little over twelve months after his departure the pauper, Mary, then settled in the parish of Twyning, married the said Francis Burns, with whom she thereafter cohabited until the time of the trial. The two children were born during such cohabitation, and were children of Francis Burns and the pauper, Mary Burns. One of said children was born in the parish of Tewksbury, and the other in a parish in the city of Worcester. An appeal was taken to the Court of King's Bench from the order removing the said pauper and her children from the township of Manchester to the parish of Twyning. The appellants contended that the respondents were required to prove the death of Richard Winter prior to the marriage of the pauper with Francis Burns, and that in the absence of such proof the presumption of law was that he was then living, and consequently that the children would be considered as illegitimate and settled where born, and that as to them the order ought to be set aside. The Court of Sessions were of the opinion that the burden of proof rested upon the appellants to show that he was alive at the time of the second marriage, and confirmed the order. The King's Bench upheld the Sessions. BAYLEY, J., writing, said: “* this is a case of conflicting presumptions, and the question is, which is to prevail. The law presumes the continuation of life, but it also presumes against the commission of crimes, and that even in civil cases, until the contrary be proved. The cases cited only show when the presumption of life ceases, even where there is no conflicting presumption. The facts of this case are that there is a marriage of the pauper with Francis Burns, which is prima facie valid, but the year before that took place, she was the wife of Richard Winter, and if he was alive at the time of the second marriage, it was illegal, and she was guilty of bigamy. But are we to presume that Winter was then alive? If the pauper had been indicted for bigamy, it would clearly not be sufficient. In that case Winter must have been proved to have * * * * |