The New York herald., 1878-02-20
WIFE OR MISTRESS?

CONTEST FOR THE BYNEs EsTATE-THE DE-
PENDANTS CASE.
When Judge J. F. Daily took his seat yesterday
morning III the Court o: Common Pleas to continue
the hearing the in which Mrs. Mary Elizabeth
Hynes seoks gain possession Of the estate oil tho
late W. X. Hynes he was addressed by Mr. stephen
W. Fullerton, who, on behalf OF the defendants,
moved to dismiss tho complaint. In support OF tho
motion he argued that there evidence whatever
to establish tho claim Of plaintiff that she had been
legally married to the deceased. The agreement of
Mr.. Hynes and the plaintiff to I've together as man
and vile was made in England, where any marriage
not made celebrated accordance with certain pre-
scrbed forms and requirements is by the statutes de-
cared null and void. Consequently the contract was
not a lawful one; and it was well established and
universal rule that neither party to contract which
the law iorods ana declares TO be vo'd can acquire
any rights under It.. The plaintiff, then, never mad
anv rights IN England under the agreement with Mr.
Hynes, and has none here.
Mr Joseph h. Choate in opposing the motion die
rected fact that III this State
merely civil contract requiring nothing but The
agreement Of the parties, followed oy cohaoitstion
in any given place must be presumed. ho said, that
the law New York existed everywhere the same so
fur, at least, as concerned man domciled 10 this
State Tue other side had proven only that the law of
England different. Consequently the law oil New
YORK must be presumed 70 exist on the hgh sea- and
upon the Continent oil Europe where the plaintiff and
Mr. Hyncs sojourned as man and wife and where their
agreement renewed The egItimscy OF the chill
dren OF u man and woman cohabiting and rcprescn l.
ing themselves husband and wife was
to be presumed, and shc presumption was only
to be overcome by clear, positive and conclusive
proof. MIR. Choate c0ntended that the English law
w>s not omnipotenl, and THAT there Was not single
case on record where marriage contract similar to
the ono IN question: and made by al American while
soourning abroad but domiciled IN this state, had
been set aside. The whole spirit and policy OF our
law was opposed 10 sucn proceeding. In snort, ne
conte nded English law had no authority In the
matter and the law existing where the party had
domlced should govern the case. 10 support his
cla ms Mr.. Choate cited from wharton, story ana
other text writer's aud from the decisions OF the Su
premc Court OF Massachusetts,
Judge Daily denied the motion, holding that there
was a question OF TACT to 90 to the jury.
Mr. Drake, OF cou nsel Tor defendants, then summed
up the evidence for his side In speech OF more than
two hours duration, in which he dwet upon the fact
that the older of plaintiffs TWO boys was born within
months alter the date OF the alleged agreement 10
become the wife OF M urged the TACT OF the boys
births being registered under the nam OF saunders
and The absence of the 'we in all OF deceased's
letters to plaintiff and various other points In the
testimony evidence that she did not consider her,
sell and regarded by Mr. Hynes as nis wife,
Mr.. Drake listened TO with great interest by an
audience winch crowded the court room When he
concluded the Court adjourned until to-day when Mr
Choa.c will up Tor the plaintiffs and the case VIII
be given 10 the Jury.