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In re Application of Hinman

Supreme Court of New York, Appellate Division

November 15, 1911

In the Matter of the Application of HENRY A. HINMAN, Respondent, for the Removal of VENA M. HINMAN, Appellant, from Office as Administratrix, etc., of CHARLES N. HINMAN, Deceased.

APPEAL by Vena M. Hinman from a decree of the Surrogate's Court of the county of Broome, entered in said Surrogate's Court on the 12th day of October, 1910, vacating an order appointing her administratrix of the estate of Charles N. Hinman, deceased, with notice of an intention to bring up for review certain intermediate orders.


Hinman, Howard & Kattell [Harvey D. Hinman of counsel], for the appellant.

Wilber & Yetter [Harry A. Yetter of counsel], for the respondent.

Page 453


'The presumption of marriage from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. * * * ' 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.' * * * The presumption could be negatived only 'by disproving every reasonable possibility."' ( Hynes v. McDermott, 91 N.Y. 451, 459.)

The evidence shows conclusively that the parties lived together as husband and wife for many years in the actual belief that they were married, and were so recognized by their friends and neighbors. It is practically conceded that a marriage at common law is shown, but we are asked to find that it took place between January 1, 1902, and January 1, 1908, when it is claimed that a common-law marriage in this State was not permissible. It is sought to reverse the presumption and to assume that the marriage took place at a time, place and manner which makes it illegal.

The presumption of marriage does not assume that it took place at any particular place, manner or time; it means that a legal marriage existed.

The husband is dead, the wife is an incompetent witness to prove the time, place or manner of marriage. If he were living and she were a competent witness they might be able to prove that the marriage took place in all respects according to the laws of this State, but they are necessarily silent. The marriage does not fail for that reason. The provisions of the Domestic Relations Law relating to marriage are not a rule of evidence and do not annul the ordinary presumption of law applicable thereto. Section 19 of that law did not attempt to visit the ban of invalidity on any contract of marriage except upon one claimed to have been contracted otherwise than as mentioned in the statute. That statute is a restraint upon the natural common-law right of parties to make a contract of marriage, and must have a reasonable construction, but is not to be extended beyond its fair terms. It has no reference to and does not destroy the ordinary presumption of marriage.

Page 454

While that law was in force in all its terms it was still permissible, when the facts required, to presume a legal marriage, although none was actually proved, which conformed to the statutory requirements. Several considerations invite the application of the presumption to this case.

It is uncontradicted that in the fall of 1901 the parties visited the appellant's mother, father and sister at Equinunk, Penn. He was introduced as her husband and occupied a room with her. Other evidence shows their acts and their claim to be married prior to January, 1902. They were in fact living in the house with his mother. The introduction of evidence tending to throw a doubt on their relations at that time does not meet the case in view of their lives and conduct and the practical concession that a common-law marriage took place at some time. The relation of the parties from that time down to the death of the husband, aided by the presumption, is alone sufficient to determine this case in her favor. There are other facts upon which the presumption comfortably rests and which assure her position. They were out of the State at different times in Pennsylvania and New Jersey, and we cannot assume that the statutory law of those States is the same as for a time existed in this State. It is provided by section 7 of the Domestic Relations Law, as renumbered from section 12 and amended by chapter 742 of the Laws of 1907, which chapter is alleged to make common-law marriages invalid, that the provisions of that chapter, so far as they relate to the manner of solemnizing marriages, shall not affect marriages among the people called Friends or Quakers, nor marriages among the people of any other denominations having as such any particular mode of solemnizing marriages, but such marriages must be solemnized in the manner theretofore used and practiced in their respective societies or denominations, and that marriages so solemnized shall be as valid as if this article had not been enacted. If the marriage took place in this State after January 1, 1902, we cannot assume that it did not take place in the manner provided for in this section.

Irrespective of the question whether from January 1, 1902, to the death of her husband on September 17, 1908, common-law marriage might ...

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