[Present, Chancellors IÍdtíeb&e and Jaicts.]

Nov. 1808.

#### Elizabeth Vaigneur, David Strobhart and Margaret his Wife, *vs.*W. J. Kirk, Survivor of his late wife, Mary Jane Kirk.

On Che question of marriage of parents and legitimacy of a child, there being such contradictory evidence as to leave the matter doubtful, an issue was directed, though the court is not bound to do so. At the trial, the verdict was against the marriage of the parents and legitimacy ofthe child, founded on certain written acts of the parents, contrary to the evidence arising from repute, and acknowledgment

IN this case the complainants filed their bill to oblige the defendant to deliver up to them their proportion of *641the estate of their brother the late Nicholas Winckler, jun. deceased, and to account for the rents and profits thereof.

The bill s'tated, that the late Nicholas Winckler died in March, 1802, intestate and without lawful issue, possessed of considerable real and personal estate ; and he left a widow, Mary Jane,- and two sisters, Elizabeth and Margaret, the latter of whom had since married David Strobhart. That by the statute in such' case provided, the said real and personal estate was divisible into two moieties, to cine of which the said Mary Jane, the widow,had an absolute right;, and to the other moiety, the surviving- sisters in equal shares.

Complainants charge that the said Mary Jane administered on the the said estate, and possessed herself thereof, and hath since married the .defendant William John Kirk, and died. That during'her life, they jointly held the whole of the estate of said Winckler, and appropriated to their own use all the profits thereof; and since her death the said W. J. K. continues to do so. That complainants have applied to said W. J.- K. to have their shares of the estate delivered up, with an account of the profits since the the death of said Nicholas. But said W. J. Kirk.hath refused to comply with their demands, and to acknowledge the rights of complainants.

Complainants pray that the said W. J; Kirk may be obliged to give a full account of the estate left by, said Nicholas, of the increase of negroes, and of the- crops and profits thereof, and be compelled to deliver to the complainants their legal portions of said estate, and account for the annual income of the same since the death of said Nicholas Winckler.

The defendant put in an answer and a.demurrer.

The defendant admits'the facts generally as charged by the bill of complainant, except that he denies that said complainants Elizabeth and Margaret, are entitled to a *642moiety of the real & personal estate of said N. Winkler, jun, because this defendant hath been informed, and believes that said N. W. jun. was not the legitimate brother of the 1 said Elizabeth and Margaret, he not being born in lawful wedlock; bilí that he was a natural son of N. Winckler, senior, and of Mary Barbara Wonderly, a widow, to whom' said N. Winckler was never lawfully married ; or that said N. Winckler, jun. was born prior to such their marriage. Defendant further saith that among other documents which tend to confirm him in this belief, there was found among the papers of said N. Winckler, jun. a deed made on 28th September, A. D. 1768, between said N. W. sen. and N. W. jun. in which deed the said N. W. jun. is styled by N. W. sen. the natural son of him the said N. W. sen. by and with Anna Barbara Wonderly, widow ; by which deed the said N. W. sen. granted to N. W-. jun. two negroes, and a third part of his stock of cattle.

Defendant further sáith, that there were also found among the papers of said N. W. jun. deeds of lease and release, bearing date respectively, the 18th and 19th days of October, A. D. 1785; whereby said Mary Barbara granted, bargained and sold unto said N. Winckler, sen. a plantation, containing 225 acres, in St. Peter’s Parish. Also a deed poll, dated 18th October, A. D. 1785, by which said Mary Barbara sold unto said N. W. sen. a negro man slave and 30 head of neat cattle; and another deed poll, 19th October, A. D. 1785, whereby said M. Barbara, widow, sold to said N. W. sen. all the negro slaves, horses and neat cattle, as should be allotted to her as a dividend, to which she was entitled out of the said D. Wonderly’s estate; which deeds defendant presumes would not have been made if the said N. W. sen. and said M. Barbara had been married.

As to the residue of said bill, defendant demur’s, for the following cause : That complainants are not entitled to an account till they shall have proved themselves to be the legal representative of Nicholas Winkler, jun. and entitled *643to a distributive part of his estate, and defendant prays judgment whether he shall be compelled further to answer, &c, and prays to be dismissed, &c. '

The cause came to a hearing on the point of the iegiti-macy of the late Nicholas Winckler, jun. deceased, i

Much testimony was produced on both sides, and the court having doubts, was pleased to direct an issue to try the legitimacy of the said Nicholas Winckler, jun. in Beaufort district, where the parties and witnesses resided, and where the cause arose.*

*

 The question of the marriage of parents, and legitimacy of children, is one of those in which the Court of Chancery is most desirous to have the aid of a jury, by directing an issue. Indeed Lord Chancellor Hardwicke seems to have thought it obligatory on him: for in the case of Graydon v. Hicks, 2 Atk. 16, 17, he says, “ If there was any doubt of the marriage, I ought to direct an issue to try that fact but as he did not think there was any doubt in that case, he did not direct such an issue. And indeed the body of the cases lay down the doctrine broadly, that it is in the discretion of the court to direct such issue, or not. In Hampson v. Hampson, 3 Vesey and Beames, 41, 2, Lord Chancellor Eldon recognizes distinctly, the settled doctrine of the court on this subject. He says, “ Courts of Equity have jin original jurisdiction, which I agree must be exercised according to a sound discretion, to try facts without the intervention of a jury ; and which aid is sought according to the common expression, for the purpose of informing the conscience of the court. I agree that a mistake in refusing to send the cause to a jury, is a just ground of appeal, if the Court of Appeals should think that the contrary decision would have been a sounder exercise of discretion: but it is a competent exercise of the authority and duty of the court in every case, and throughout every case, and in every stage, to determine according tq its discretion, whether it does or not want that assistance.”

And so the question of granting a new trial, after the verdict is returned on an issue, directed by the court, is wholly in the discretion of the chancellor. See'9 Yesey, 155, the minor Cannons of St. Paul’s, v. Morris; and the above cited case of Hampson v. Hampson. 3 Vesey and Beames, 41, 2.

The issue was accordingly made up, and was tried at the Circuit Court in November, 1808.

The complainants produced a number of credible witnesses, who attested that they had for many years known *644Nicholas Winckier, sen. and Anna Barbara, who had been fhe widow of David Wonderly. That they lived togcther as man and wife, and he always acknowledged and treated her as his *wife;*and that she presided in his family as his wife, and was so reputed and known by the. *neighbours;*and that Nicholas Winckier the younger was the issue of that marriage, and the brother of the complainants Elizabeth and Margaret.

On the other hand the defendant produced the deeds stated, and referred to in his answer, in and by which the said N. Winckier, sen. and.Anna Barbara, transacted business as unconnected persons, with distinct interests ;' and in one of which deeds he calls Nicholas Winclder, jun. his natural son by Anna Barbara Wonderly, widow, &c„

Upon this evidence the jury found a verdict, that Nicholas Winckier, jun. was not the lawful issue of N. Winck-ier, sen. but his natural son.*

*645The effect of this verdict was to defeat the claim of the complainants to any share in the estate of their hro-ther, so found to be illegitimate. That moiety of his estate which did not go to his widow by the operation of *.*7 *646the statute of February, 1791, escheated to the state. But ^ legislature, on-petition, passed an act to remit the es-c^eat? anc^to vesi property in his sisters, the complainants. x

Desaussuke for complainants.

Peinóle for defendant.

*

 Tlic subject of marriage, and consequently the legitimacy of children, is on the same loose footing1 in this state that it was in England,, before the statute of 26th, George 2d, oh. 33, and as it is now in Scotland. We have no statute regulating marriages, or providing any form for the celebration of them, or for recording them. And they are usually celebrated in any form the parties please, before a clergyman or magistrate.

Wo must therefore resort to the law as it stood in England, prior to tile statute abovementioned, to ascertain what constitutes a legal marriage, and the legitimacy of children in this country. That law is well slated by Mr. Justice Blackstone,. in his commentaries, 1 vol. chap. 15, p, 433, Ac.

And Sir William Scott has recently examined the subject of marriages in Scotland, [which are not regulated by statute, but remain on the footing of the canon law] with wonderful ability and acuteness, in the case ofDalrymple, the wife, against Dalrymple, the husband.— TIis judgment, delivered in the Consistorial Court of London, in July, 1811, in liis character of chancellor of that diocese, contains a most luminous and complete view of the subject.

lie sums it up by sta ing,

1st. That the law of the country, where the marriage was contracted, must govern, though one of the contracting parties may have been domiciled in another, country. ■

!j!d. It is a civil contract regulated by law,- and endowed witlj civil, *645consequences ; to which in most civilized countries, tbe sanctions of religion have been superadded.

3d. That marriage having- been erected into a sacrament by the Roman Catholic Church, the marriage contract fell naturally enough under tile ecclesiastical cognizance, with respect both to its cheological and legal constitution.

But the canon law so far respected the natural and civil origin of marriage, as to consider that where the natural and civil contract was formed, it had the full essence of matrimony, without the inter-, vention ofthe priest.

The Ecclesiastical Courts, which had cognizance of ecclesiastical causes, held that, “an irregular marriage, constituted *per verba de preesenti,*though not followed by any consummation shewn, was valid, to the full extent of voiding a subsequent regular marriage, contracted with another person.” The statute 32, Henry 8th, ch. 38, [made of force here] enacted that marriages solemnized in the face of the church, and consummate with bodily knowledge, shall be deemed good, notwithstanding any precontract of matrimony, not consummate with bodily knowledge, which either or both the parties shall have, made.” This statute was repealed in England by the statute of 2d Edw. 6, ch. 23 : [but the repealing statute has not been adopted here;

See Mi-. Justice Grimke’s collection of the Public Laws.]

The Temporal Courts recognized the doctrine of the Ecclesiastical Courts, as the existing rule of the matrimonial law of the country See Bunting’s case, 4 Coke, 29. In Collins vs. Jesson, 3d of Anne, it was said by Lord Chief Justice Holt, and agreed to by the whole bench, “ that if a contract be per *verba de*preesenti, it amounts to an actual marriage, which the very parties themselves cannot dissolve by release or other mutual agreement, for it is as much a marriage in the sight of God, as if it had been in *facie ecclesite.”*“ But a contract *per verba de futuro,*which do not intimate an actual marriage, but refer to afuture act, is releaseable.” 2 Salk. 437, Mod. 155. In Wigmore’s case, 2d Salk. 438, the same judge said, *“*a contract *per verba de preesenti,*is a marriage ; so is a contract *ele futuro,*if the contract be. executed, and he take her, it is a marriage.”

And this continued to be the law in the Ecclesiastical Court. Sec the remarkable caseof.Lord Fitzmaurice, Coram Deleg. in 1732, which, was extremely similar to the case of Dalrymple.

The juarriage act of 2Gl\i. Geo. 2d oil, So, put an end to all tliis^ *646doctrine in England, by establishing a public and regular form, without which, the relation of husband and wife cannot be contracted. — . But that statute did not alter the Scotch law. And that statute not (being made of force here, the law relating to the marriage contract, stands upon the footing it was in England, prior to the statute of George, grounded on the canon law, controlled however by the statute of 32, Henry 8th, ch.38.

The remarkable facility of contracting' matrimony in this state, is strongly contrasted with the impracticability of dissolving the contract. No divorce has ever taken place within the state. The legislature has uniformly refused to grant divorces, op the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces *a vinculo matrimonii,*on. tlie broad principle that it was a wise policy-to shut that door to do - mestic discord, and to gross immorality in the community