#### *Mary Canady and others*vs. *Jasper George and others.*

J. C. residing in this State had a-wife living in Georgia, and known to be alive as late as the Kail of 1812. Ho married again in 1818, and died in 1851. Before his second marriage he said that his wife was dead, and received a letter and read it to by-stand-era stating her *death:*— Held, after the death of J. C., that his seoond marriage was valid — the presumption of the death of the first wife before the second marriage, arising from her absence unheard of for forty years, being strengthened by the presumption that the husband lias innocent of crime in contracting the second marriage, and by the information of her previous death.

Deeds from a putative father to his bastard children, purporting to be for valuable consideration, *held,*upon the evidence tobe voluntary.

*Before*Wardlaw J., *at*Barnwell, February, 1853.

The decree of his Honor, the Circuit Chancellor, is as follows :

Wardlaw, Ch. John Canady died intestate, April 9, 1.851, and William Cook became the administrator of his estate, November 25, 1851. The plaintiff Mary claims to be the widow, and the plaintiff Vashti to be the sole legitimate child of the said John Canady; and the defendants are five illegitimate children of the said intestate, begotten on the body of Rachael *104George, with the husbands of two of them who are daughters. On April 5,1851, John Canady, by four deeds, conveyed in fee to each of said illegitimate children, one-fifth of the plantation whereon he resided, worth about $3,000, and apparently the whole of his estate, reciting as a consideration in the deed to the two daughters, *“*services rendered ” by them to him, and in the three deeds to the three sons, *“*one hundred dollars,” paid by each to him.

The bill filed January 2, 1852, seeks to set aside the said deeds, in whole or in part, first on grounds -which may at once be put aside as unsupported by proof, that the grantor was of unsound mind, and that the grantees procured the deeds by the exercise of undue influence over him; and secondly, that said deeds are void under the provisions of our Act of 1795, (5 Stat. 270,) so far as the estate conveyed to -the bastard children exceeds one-fourth of the clear value of the donor’s estate after payment of debts.

The defendants endeavor, in the first place, to sustain the deeds, on the ground of *bona fide*sale for valuable consideration. It is in evidence, that the donor, at the date of these deeds, was about seventy years old ; that for some ten years previous he was too infirm for active labor; that his natural children lived with him, and worked industriously on his plantation ; that nothing had been expended on their education; and that he frequently spoke of indebtedness to them. But on the other side, it is proved that the donor, a week or two before the execution of the deeds, had made a will containing like provisions for these children as the deeds — that the deeds were prepared by his friend and adviser, Dr. J. J. Harley, upon some notion of the draftsman, that they were more operative than a will, without instruction from the grantor, and without any bargaining between grantor and grantees as to the value of services and land ; and that these were executed in the absence of the grantees, without adjustment of accounts or payment of money — and that the nominal consideration was very inadequate. It may be conceded that a putative father may legally *105sell for sufficient consideration to his natural children as to other strangers, and that their services may constitute a valuable consideration for such sale. *King*vs. Johnson, *2*Hill, Ch. 624. But the evidence of sale in such case should be unambiguous. We must not lightly presume a sale, nor violate the policy established by the Legislature upon appearances merely specious. I regard the notion of sale by these deeds as a mere pretext.

The defendants next insist, that the marriage of the plaintiff Mary and John Canady was invalid, because he then had a wife living. It is clearly proved by witnesses, who were present on the occasion, that in October, 1818, the ceremony of marriage was formally pronounced by a minister named Prescott Bush, between John Canady and the plaintiff, Mary, then Mary Johnson. It is also proved, that after living together a few months they separated, and that in due time after the separation, the plaintiff, Yashti, appeared as fruit of their connection. After this separation she returned to her father’s house, and he for a time lived in concubinage with women named Ferely and Stringfellow. The plaintiffs argue that the rights and duties resulting *prima facie*from this ceremonious union between Canady and Mary, can be destroyed only by evidence equally full and precise of pre-contract by one of the parties. But as the law of this State prescribes no special form for the contract of marriage, nor special rules of evidence on the subject, marriage, as other facts concerning which there is no statutory regulation, may be established by circumstantial evidence, except in indictments for bigamy or actions for *crim. con.*

The testimony of persons who witnessed a marriage is not of higher degree, nor always more satisfactory than the testimony of witnesses, who prove the cohabitation of a man and woman with the reputation of their intermarriage. In the present case, the evidence establishes that John Canady, in 1804 returned from Georgia to his ancestral home in Barnwell dis-drict, bringing with him as a wife a woman named Agnes Saunders, and that he and she lived together for nearly two years with the reputation of being man and wife, and that this repu*106tation was sustained by declarations of themselves and other members of the family, of actual marriage between the couple. The force of the presumption arising from their cohabitation merely, is much impaired by testimony that she had previously produced a bastard in North-Carolina, and that he was & lewd fellow; but their cohabitation and the uniform reputation of their being man and wife, satisfy me of the fact of marriage between them.

It is further argued for plaintiffs, that the law of Georgia, which must control the construction and obligation of the contract wherever it may come into question, requires that bans and license should precede, and registry follow the contract of marriage there ; and that evidence from cohabitation of parties and reputation of their marriage is insufficient unless additional proof of these requisites be given. But the law of Georgia does not make bans, license and registry essential pre-requisites to the validity of a marriage, and merely imposes penalties for their non-observance. *Prince’s*Digest, 2B1, 237.

We have in South-Carolina unrepealed statutes requiring registry of marriage, and inhibiting any lay magistrate from joining persons in marriage under penalty. 2 Stat. 243, 289. But it was never supposed that unregistered marriages by lay magistrates were void; and the Court in *Watson*vs. Blaylock, 2 Mill, 351, declared the Act imposing penalties on lay magistrates for solemnizing marriages, obsolete and invalid — the only instance in our judicial history, in which Courts have ventured to declare an Act of the Legislature inoperative from mere nonuser.

Agnes Saunders went to Georgia in 1805, leaving an infant about three weeks old. After the lapse of some months she made another visit of a few days to this State, and in 1806 returned with the infant to Georgia. No claim in behalf of herself or child has at any time since been made upon Canady or his estate; nor has any witness seen either of them since. William Buckhalter, who married a sister of John Canady, testifies that he received a letter from said Agnes in the Fall of 1812. *107Since the commencement of this suit, this witness went to Georgia in behalf of the defendants, to make inquiries concerning this woman, but he reports no information obtained. There is no evidence that she or her child have ever been heard from since 1812; beyond some loose declarations of John Can-ady, made long after his separation from the plaintiff Mary, and the beginning of his illicit intercourse with Rachael George; and I cannot rely upon these declarations, inasmuch as they probably sprang from the motive of subserving the interests of his unlawful family, and as they are contradicted by other of his declarations. A sister of the plaintiff Mary testifies, that Can-ady stated to the father of herself and the plaintiff, three or four weeks before the intermarriage of John and Mary Canady, that his former wife Agnes had been killed by a fall from a a horse, and that her father required some evidence on the point. And Thomas Turner testifies that at some church meeting held in the neighborhood, before plaintiff Mary’s marriage, Canady received a letter by the hands of Jack Rogers, from some relative of of his former wife, stating her death, and read this letter to the by-standers. It is manifest from this summary, that there is no explicit proof of the death of Agnes Sanders before Can-ady’s taking to wife Mary Johnson; and if her absence and lack, of information of her, existence for seven years be necessary to raise the presumption of her death before the event of the second marriage, the full term had not then expired. The life of a human being will be usually presumed to continue for seven years from the date of the last information of his existence, and there must be some circumstance in aid of a shorter term than seven years without knowledge of his life, to raise the presumption of his death before any intervening event. The lapse of seven years, however, raises merely the presumption of death without absolutely fixing the date of it, at one rather than another day of the seven years, and leaves the date to be inferred from all the circumstances of each particular case. It is an important element in determining the question whether one died before any particular event within the seven years, *108that the lack of information of his existence continued for a long time after the seven years. Where the presumption in such case is complete by a long blank in the history of the individual. (in the present case for forty years) it is more natural and reasonable to fix his death near the beginning of his unexplained absence and of uncertainty as to his continuing life; especially where this conclusion is needed as a shield from crime, or a protection of accrued rights.

In *Webster*vs. *Birchmore,*13 Yes. 363, the rights of the parties depended upon the question whether I. had died before S. I. had not been heard of for 23 years, but of this term not more than five or six preceded the death of S. Lord Eldon determined that I. died before S.; laying stress on the circumstances that I., at his departure, expected to return in six months, and that he was not then in health.

In *Naisor*vs. *Broclcaway,*M. S., Charleston, May, 1830, (a) the question was whether B. died before attaining the age of 21 years, as to some purposes, and before 18 years as to others; he left Charleston in 1814, being then of the age of 14 years, and resided in New-Yorksix months, and was not afterwards heard of. Chancellor Harper held in a circuit decree not appealed from, that B. died before *18;*and asserted as a general proposition, that the ignorance of his existence during the whole term was the consequence of his death, which should be referred to the time when his existence became uncertain, admitting, however, that circumstances might modify this general rule. 1 am not prepared to admit as a general rule, that when death is established by presumption from lack of information of life for a great lapse of time, the date of death must be referred in the absence of other circumstances to the beginning of the term of uncertainty or negativeness as to continued life; for this is contrary to the presumption that human life will continue for seven years, and as it seems to me to common sense and experience-In my opinion the time of death is to be determined by the circumstances of each particular case.

*109It is true, however, that our Law Court has determined, that when a grant is presumed from twenty years possession, the grant bears date at the inception of the possession. *iSims*vs. *Meacham,, 2*Bail. 101. And Judge Evans delivering the opinion of the Court in *Chapman*vs. *Cooper,*5 Rich. 459, upon the presumption of the date of death, says, he “ can see no reason why, when the presumption depends upon the common law acquiescence of twenty years and upwards, we should be restrained in giving the presumption the same effect as to time which we give to other presumptions.” It is unnecessary to pursue this discussion for the purpose of the present case. Here the presumption of Agnes Saunders’ death before the second marriage of her husband is strengthened, not only by the presumption that he was innocent of crime in contracting the second marriage, but also by accredited information of her previous death. A Chancellor determining upon facts like a jury in the other Court, should deduce the conclusion of a fact from presumption, whenever a Judge of the Law Court might properly direct a jury to presume the same fact. In *Chapman*vs. *Cooper,*before cited, the Court of Law presumed the lawfulness of the marriage of a woman to her second husband, entitling her to dower in his estate, although the second marriage was within five or six years of her marriage to a former husband, and at a time when the former husband was uncertainly and contrari-ently reported to be alive and dead, relying for the presumption of the death of the former husband before the second marriage, principally upon the fact that he had not been heard from for twenty years and more after the second marriage.

That case concludes the present, and I am of opinion that Mary Canady is the lawful wife and Yashti Cook the lawful child of John Canady.

It is declared and adjudged that the conveyances by John Canady to his natural children by the deeds of April 5, 1851, are void, for the excess of the estate conveyed above one-fourth of the clear value of his estate at the time, after the payment of his debts; and that the plaintiffs are entitled to distribute this *110excess among them according to our statute of distributions; and it is ordered and decreed that the Commissioner of this Court inquire and report as to the extent of such excess.

The defendants appealed, and now moved this Court to reverse the decree, on the grounds:

1. Because it was abundantly proved, that John Canady had a wife living in the Fall of 1812. And the legal presumption that she was alive for seven years from that time, is not rebutted sufficiently by the circumstances proved — on the contrary, it is submitted that the proof rather fortifies the legal presumption.

2. Because, in the absence of the proof to invalidate John Canady’s marriage with the complainant Mary,- it is submitted that there is proof sufficient of a valuable consideration to sustain the deeds.

*Owens,*for appellants.

*Bellingerland Hutson,*contra.

(a)

 Rich. Eq. Gas. 449.

*Per Curiam.*

This Court concur in the decree of the Circuit Chancellor, and the appeal is dismissed.

Dunkin, Dargan and Wardlaw, CC,, concurring.

Johnston, Ch., absent at the hearing.

*Appeal dismissed.*