The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1876-01-17

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\ ever entered. Whether on>s OF the parties
overreached the other or not "a making the
settlement IL seems to me IL wholly I'm
material. The evidence then shows thai
shorty after the settlement, and on the Eth
day of June, 1862, at the city o.
| Boston, Mas, John 4. Foster and
| Mary A. SpoDsler appeared before the
] proper authorities, and representing that be
was % years of age and she 81, both OF Bos-
ton, and that it was bis and her first mar
risge, were duly and legally married ac-
cording to the laws of that common wealth.
| It was in all respects a ceremonial marriage.
| Then Isaac NJ. Singer, the deceased, was, on
the 18Th day of June, 1868, by like ceremony,
married, at the city of New York, to lss-
| belle Eugenia SoDerville, he person named
in the alleged will as bis wife, and stated in
| the petition to be his widow, nd the mother
of six children by him, who are all parties
to this proceeding. Here is no very diff
| cult question OF law to determine. The
case derives it's chief interest, not, unfortu-
netely, from any novel phase of society
which it dIscloses, but from the large for
tune OF the deceased. and from the fact that
the meretricious intercourse between the
deceased and the claimant continued in so
open and public manner for about quar-
ter of q century, during which time
THEY REARED a LARGE FAMILY OF CHILDREN.
Prior to the early part of the thirteenth
century ceremonial marriages. were un-
known. By the ancient common Law OF
England, marriage to be valid had to be
celebrated in facie ecclesiae. After the
reformation, however, the ecclesiastical rite
was dispensed with no longer absolutely
essential, but the important element was a
marriage contract between the parties. Lord
| Mansfield in speech which he made in
| Parliament, on introducing the marriage
act in 1854 said: 81 believe it will be al
| lowed, if a man and woman seriously and
sincerely enter into a marriage contract
| without the interposition of clergy man or
| any religious ceremony whatever, it will be
go marriage, both by the law OF God,
| aud the law OF nature" The canon law
had To do chiefly with the holiness of the
relation, and the ecclesiss ical law had, in
one great branch of the Christian Church,
and it so still remains. But under our sys-
tenn Of government and iuris-
prudence, church and state are
distinct, each governing and acting
according to his own pohty, the state being
paramount. Our common law, on this sub
ject, is the same which prevailed in Eng
land subsequent to the reformation and
prior to the enactment in the latter, of the
marriage act referred to. Our courts have
mainly followed the enlightened decisions
of the English courts, running as they do in
one almost uniform current, the strong flow
les. The chief requisite to a valid marriage, as
thus estsblished,l rs the Interchange between
the par les, of a mutual, present consent to
take each other as husband ana wife. This
is, in ITSELF sufficient: Fenton agt. Reid. 4
j. r, 81; Clayton agt. WsrdelI, 4, N. Y, go;
and the fact of such consent or contract,
may be Inferred, in the absence of direct
evidence, from proven state Of facts war
rsntiDg the presumption, where
NO IMPEDIMENT TO MARRIAGE EXISTS.
Our books are full of decisions to that effect,
but it will be sufficient to refer to CLAYTON
agt. Wsrdell, supra, and to O'Gsra agt.
Eisenlohr, Ss N. Y, DOG. 1t has also been
held that where cohsbitation is proved to
have been illicit in its origin, 1t must be
presumed to continue so until a change in
its character shall have been established by
satisfactory evidence. Clayton agt. War
dell, Carrjolle agt. Ferrie, % n. Y, l06
Besides, IL is the very essence OF marriage
that it shall continue until death. Apply
ing these plain and we'll established legal
propositions to the facts before us, it is quite
apparent that Mrs Foster must fail in her
present application TO be recognized as the
widow of the decedeut. Her relations with
him were meretriciOus in their inception,
with full knowledge on her part that they
were such. de had living vile,
which was complete impeachment
to their marriage, cit her ceremonial or in
eIential, down to the year 1860. Indeed, it
is not insisted by her learned counsel that
any marriage could be established in any
way prior TO the decree of divorce obtained
by him from his wife, but it is insisted that
after that period, the impediment having
been removed, we must infer marriage
from the fact OF their having lived together,
cohabited together, as husband and wife
for the space of six months; but to such an
| In1lrAnCa
there was o change from the Illicit relations
already established, the removal of the i'm
pedimeDt not of itself operating such
change; second, n change ofth relations was
absolutely refused to be made by him; THIRD,
alter such refusal she still continued, FOR six
months. to live with him as she had done
before; fourth,
THEY CEASED TO LIVE TOGETHER FoREvEF
after the separation in August, 1860. These
reasons are of themselves sufficient to dis
pei any gathering appearance of a marriage
between the parties. If anything further
were needed to convince us that they die
not consider themselves as husband anC
wife, it is found in the fact that they subse
quently, under the circ1m stances disclosed
by the testimony, severally, and without
the Formally of a decree of divorce first oh
tanned formed ceremonial marriage relations
with other parties. The reflex effect OF the
hostile and other proceedings of the parties
which follow the separation in 1860, aside
from the admissions made In the various
documents put in evidence, and the facts
already referred to, is not of such charac
Ter as to materially effect the result.
therefore reach the conclusion that Mrs
Foster, the applicant in these proceedings
is not the widow of Mr.. Singer, but tina
Mrs. Isabelle Eugenia Singer, named in thu
will prOpounded, a lady whose character II
no way impugned by or involved in tn
matter, and which we are bound to consider
a. above reprosch, is the widow of the de
ceased, and her children his legitimate off
spring. The application of Mrs. Foster
denied. OWEN 7. COFFIN,
Jan. 10, 1876. Surrogate.
IMMEDIATELY AFTER THE READING OF TIL
DECISION
Mr.. Van Pelt arose and said that, with al