Caujolle v. Ferrié (9 N.Y. 90, 1861)

Davies, J.

It is to be assumed, as clearly established, that the respondent is the son of Valentin -Ferrié and Madame De Lux; and the only question raised upon the argument for our decision is, whether he is the legitimate son of his parents, or an illegitimate. This question arises on the respondent’s application to the Surrogate of New York, where the deceased resided at the time of her death (she dying intestate), for letters of administration upon her estate. The Revised Statutes of this State provide that administration in case of intestacy shall be granted to the relatives of the deceased who would be entitled to succeed to the personal estate, in the following order: ■ First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate. (2 R. S., p. 74, § 27.) Upon the conceded facts, the respondent would be entitled to such letters. He is the child, and the only child, of the deceased, acknowledged by her to be such, and to be her sole and only heir. He could not be such heir, bv the laws of this Statq as the s^'fi'e’xjstfiFnt-the' time of fheoeath of the deceased, lfihewas nothenleaitimate, oEiíd^B^BraBrasserfioYóñ^her partis.a distinct and unequivocal declaration of his legitimacy, and, being made ante litem motam, is properly to be regarded as evidence upon that point. I attach no little importance to the fact that it was made in articulo mortis, when all motives for concealment or prevarication must have ceased to exist or operate upon her, and when, it may be well assumed, she should desire the exact truth to be known, that tardy justice might be done to the object of her affections, her caprices, and persecutions. For fifty-four years she had exhibited for him, at times, all of a mother’s tenderness and love; again of cold neglect, then of returning affection, followed by personal abuse, insolence and persecution. A wounded and disturbed conscience might well have impelled her, on her dying bed, to make all the reparation then in her power, by declaring his true status and his right to succeed to the inheritance of the property which, by miserly accumulations, she had acquired. It is, I think, manifest'that, during her long life of toil and penury and self-denial, she never lost sight of the fact that all she saved and all she could make was ultimately to go to make a gentleman of the child of her youth and early affections.

It being shown and conceded that the respondent was the' son of the decedent, he was entitled to the letters. The presumption of the law was that he was her legitimate son; and those who assume the fact of illegitimacy have cast upon them the onus of establishing it. The primary tribunal in the present case, and the appellate court, have both arrived at the conclusion that the appellant has failed to make out the status of the respondent’s illegitimacy. It is for this court to say if such decision is erroneous.

It is urged, in the first place, that, as the intercourse between the parents of the respondent was illicit in its commencement, the presumption of .the law is that it so continued, and that the intercourse being illicit at the time of the concubitus, such condition must be assumed to have continued to the time of his birth. This, undoubtedly, is the well-settled rule. (Cunningham v. Cunningham, 2 Dow’s P. C., 482; Clayton v. Waddell, 4 Comst., 236.) If it was subsequently changed, at what time did it become lawful? The circumstances which have impressed my mind with the conviction that it was changed, are the following: It must be assumed that both parents were aware of the necessity of this change. The father, it is clear, not only intended marriage, but was most anxious and determined to consummate it. The only difficulty arose from the opposition of his father; and it is'quite clear to my mind that he determined to brave that, though it deprived him of a home, the association and friendship of his family, and the disruption of his business relations. His flight from his father’s house can only be accounted for on the assumption of his intention to marry Jeanne. ¡Neither his father nor any other member of his family objected to his connection with the respondent’s mother, as his mistress; but, to secure his marriage with her, flight from his home and estrangement from them were the inevitable necessity and result. These he met for this purpose; and when we see that such estrangement continued, and friendly relations with them were never resumed, can we doubt that he consummated his intention, and that the ¡knowledge of that fací was the cause of the original and continued estrangement and separation from his family ? In addition to this, and as evidence of the change of their condition, we have the public proclamation of the intended celebration of marriage, on the 20th of May, before the president of the commune of St. Girons, and the public record made thereof. It is true, no acts of marriage has been found on record; and it will be seen hereafter how much importance is to be attached to that circumstance. Then we have the removal of father and mother together to the house of Benóz, where they éohabited together, and lived as husband and wife. The only two witnesses who knew them at that time, who have been examined, were Daffis, the friend of Valentin, and De Galai, a female friend of Madame Anóre and Jeanne. Daffis says they lived together one or two years, and she had a child by him, born and baptized at St. Girons. He speaks of the opposition of the father of Valentin to the marriage, and that he charged his son with stealing leather from him to procure money for Jeanne. The child took the name of Ferrié there. He never knew whether Valentin was married to Jeanne or not. He did not know whether she was his wife or not. He never heard anything said of a proposed marriage between Jeanne and Valentin. Miss De Galai, who was two years the senior of Jeanne, seems to have known her well at St. Girons. She did not know that she was married; but she lived with Ferrié a long time at M. Benóz’; that they lived together there; that they cohabited there. She had a child there, and which was baptized. They lived together some time before and after the aecouchment; that they lived together as if they were husband and wife. She did not know of any act of marriage existing between them; that they were both together when the child was sent to nurse. She understood they wished to be married, but did not know whether they were or not. Valentin was present at the aecouchment. She had heard Ferrié speak of Jeanne by the name of Ferrié. She recollected well that they both went to see the child at nurse; and they went to Bordeaux together. The people of the quarter where she lived called her Madame Ferrié. She had heard them call her so many times. She had heard Ferrié speak of her by the name of Ferrié. She had heard Madame Anére call Jeanne Icard Ferrié many times; and M. Anére called her by that name. I dismiss from consideration the testimony of the other witnesses at St. Girons, as most of them have been born since Madame De Lux left there, and they speak of reports and conversations which evidently were of recent origin. There is one exception to this remark, and that is Catherine Ferrié, widow of DAplus, the sister of Valentin. She was only five years old at the birth of the respondent, and at the time Valentin and Jeanne left St. Girons, she did not know they were married. She knew that her brother quitted her father’s house, and occupied a chamber with a woman who was a servant next door; that her father opposed the marriage, and the family'recognized Jeanne as the “ bonne amie,” or mistress, of Valentin, and not his wife, as they were opposed to that; that they left St. Girons together. She manifestly knew nothing of the status of the respondent, as she stated he died right away after his birth. She says: “ After Valentin left his father’s house he never returned to it again to live. His father refused to hold any relation with him. Valentin wished to marry Jeanne. His father did not wish him to marry Jeanne, and his father would not hear it spoken of, and forbid the children to go and see him after he left the house. Valentin wished to marry her before he left the house. I was too young for him to talk to me about it, but it was well known in the family and discussed. Valentin worked at his occupation with his father, but after his flight from the house he worked for him no longer. He worked • for some of his brothers who worked at the same trade, and who had tanneries. I know of no other objection that his father had to the marriage than that she was a servant. On that account the family were opposed to it.” The respondent was examined before the Surrogate, and testified that his mother told him that she and his father took him to the nurse and left him there; that she went almost every week to see Mm, but he only went two or three times. “ She did not say how she was married. I could never ask her any questions on that subject. When I was baptized, my godfather was my' father’s brother; his name was Ferrié. Thinks his godmother was some relation to his father’s family.” " From these facts, what are the probabilities of the marriage of Valentin and Jeanne ? I must say they are persuasive in impressing my mind with the conviction that they were actually married, and I think at or about the time of the flight of Valentin from his father’s house, and wMch must have been before he went to the' house of Benóz, and before the birth of the respondent. I will here take the occasion to say, that the testimony has satisfied me that, with' the exception of the illicit intercourse' between the parties, their characters were good, and no cause of reproach, or suspicion derogatory to either, existed or- had any circulation, until after they left Si, Girons. I think the reports of the Easons of Jeanne, and rumors prejudicial to her and of the illegitimacy of the respondent, testified to by the various witnesses,' may all be traced to the known and avowed fact of her living with respondent’s father and having had a child by him, and the notorious hostility of Valentin’s father and family to his marriage, and the assumption that such hostility had been effectual to prevent it. His family regarded such a marriage as disgraceful to them; they had, therefore, every motive to deny it publicly. They never admitted, its existence, preferring to disgrace their relative by causing it to be believed that Jeanne was his mistress, apd that his issue by her was a bastard. Their passions were excited by his flight from his father’s house, and his avowed determination to forsake all others and cleave only unto her. They have always persisted in this course of action; and this satisfactorily accounts to my mind for the interpolation, upon the record of the intention to celebrate the act of marriage, of the word “ neant," or null. The law authorized no such proceeding, and it is, therefore, to be presumed it was not done by any public officer in discharge of his prescribed duties. If, as was Contended on the argument, Valentin was a minor at the time, and this entry is to be regarded as evidence that his father refused his consent, and therefore the intended marriage was null, it is a conclusive answer to say that the law, in such a contingency, prescribed a different form for indicating these facts. The marriage of a minor could be opposed by the father; and if such opposition was made, the law prescribes the mode and manner of determining its reasonableness, in the nature of a judicial proceeding; and a copy of the judgment thereon is to be delivered to the public officer having charge of thé record of publication, “who shall make mention of them in the margin of the record of' opposition on the record of publication.” It is clear that the entry of the word “ neant" in the margin of the record of publication, in the present instance, was not made in conformity with this provision of law, and did not, therefore, proceed from any act of opposition made in compliance with its terms. It is, therefore, null and of no legal significance. It does not appear when, or by whom, it was made, whether before or after the death of Valentin Ferrié. I think it more probable that it was written there after the death of Valentin, and by some of his relatives, to efface the only record evidence of his marriage with Jeanne. The determination on their part never to recognize any such marriage stands out clear and undisputed; and it would be natural for them, after the death of Valentin and the departure of Jeanne to America, and the supposed death of their issue, to do what they could to efface the evidence of what they regarded as a stain upon their family. They could not destroy the record; they could not obliterate what was written; they could not get an act of opposition, for the reasons which will be presently stated; and, therefore, all they could do was to assume that the acte of marriage had never been celebrated, and either by their own hand write in the margin of the record the word “ neant,” or prevail on the officer having it in charge to do so, on the representation that no act under it was ever performed. In either aspect it had no legal warrant, and is not entitled to any weight as evidence that a marriage between the parties never took place. On the reappearance of Madame De Lux at St. Girons, with her son, this persistent declaration of the family, that no marriage had taken place between "Valentin and Jeanne, and this aspect of the record, might well serve to convey the impression that such issue "was illegitimate. To circulate such a report, and cause it to be generally believed, was in harmony with the avowed purpose of Valentin’s family, that he should not marry Jeanne, and, after he had left his father’s house for that purpose and lived with her as her husband, to have it understood and believed that such connection was meretricious.

This seems an appropriate place to consider whether any opposition, under the French law, to the marriage, could legally have been made. The act of 1792, which was in force at the time, prohibited the marriage of minors, that is, persons under the age of twenty-one years, without the consent of their father or mother; that the consent of the father was sufficient, and only those persons whose consent is required for the marriage of minors could offer or make an act of opposition. I think I have satisfactorily shown that no opposition, in the meaning of these provisions, was made to this marriage by the father, and that the entry of the word “ neant ” has no connection with this act of opposition, as defined and regulated by the French law. But I think a more satisfactory and conclusive answer can be given to this view of the case. The evidence has satisfied me that no act of opposition could be made, for the reason that both of the parties at the time had attained their majority. It is true that the declaration of intention states the ages of the parties, and states that Valentin is aged nineteen years and Jeanne twenty-one years. It is to be observed that the law does not require the ages of the parties to be stated in this acte of publication. It is, therefore, surplusage, and not entitled to much consideration. It is clear that Jeanne’s age is not truly stated, as she was then twenty-two years old, and on the 24th of November following would have been twenty-three. The statement of Valentin’s age is only presumptive evidence, and though, if he were a party here, on the assumption that he caused the act of publication to be made, it would be regarded as truly stated, yet clearly he would have been at liberty to have shown that his age had been erroneously stated. I see no ground upon which he would be estopped from showing the truth in this respect. A fortiori, if he would not, the respondent is not precluded from establishing what his age actually and truly was at that time. I think the evidence satisfactorily shows that Valentin Ferrié, at the time of the act of publication, was of full age, and could lawfully enter into the contract of marriage, without reference to the consent or opposition of his parents. Two only of the witnesses who have been examined speak as to his age, and both, I think, establish that he was then of full age. His sister, the widow D’Aplus, who must.be presumed to know his age the most accurately, says that, at the time of her examination, in September, 1855, she was sixty years of age. She must, therefore, have been born in the year 1795. She also states that Valentin was twenty years older than she was. If this be true, and I can see no reason to doubt it, he was consequently bom in the year 1775, and was twenty-five years of age in 1800— a reasonable and proper age to contract matrimony with a girl about two years his junior. The Chevalier Daffis, the only other witness who speaks in reference to his age, does not speak with the same exactitude and certainty, and cannot be presumed to have that accurate knowledge on this point which his sister possessed. He said he was seventy years of age in September, 1855. I understand by this expression that he was past seventy and not yet seventy-one. He knew Valentin Ferrié well. He was six years older than himself. It follows, therefore, from this statement, that Valentin must have been born in 1778 or 1779. I place more reliance on the testimony of his sister; and I only refer to that of Daffis as confirmatory of her evidence. Valentin was, I think, in fact, nearly ten years older than the Chevalier; and the apparent .discrepancy between his statement and the positive testimony of the sister does not, in my judgment, weaken at all that of the latter. I assume, therefore, that it is established that Valentin was of lawful age to contract matrimony in May, 1800, and under no disability whatever by reason of non-age.

In support of the view that the marriage relation existed between him and Jeanne, in addition to the facts already refer red to, may be cited that, in his presence, without dissent on his part, she was called by his name and known by it; and a strong circumstance in corroboration of this position, to my mind, is, that the child born to him by her took, with his privity and by his procurement, his own name, by which he has always been known, through the whole of his life. The ade of baptism, procured by him on the day of the birth of his son, when, we know, the mother must have been in the house of Benóz, speaks a most significant language. He takes his offspring, immedi ately upon its birth, accompanied by two of his relatives, who assume the responsible offices of godfather and godmother, to the curé, and has him baptized according to the rites of the church and a public record made thereof, and that he was the son of Valentin Ferrié and Jeanne Icard. If it was the child of shame and disgrace, we can hardly find a motive for thus hastily making an enduring record of the infamy of the parents and a perpetual memorial of their son’s dishonor. Much stress is laid on the circumstance that, in this record, Jeanne is described as Icard, and not Ferrié, as it is urged she would have been if, in fact, she was his wife. It is quite apparent that it was the custom of the French people-in that vicinity, in public acts of this character, in speaking of a female, although a married woman, to designate her by her maiden name.- In the ade of the publication of the marriage, Valentin is described as the son of Balthazar Ferrié and of Francés Gazes—Gazes being the maiden name of his wife; and Jeanne is described as the daughter of Jean Icard and Magdalen Riviere.. In each instance the wives of Ferrié and Icard are called by their maiden names. So in the registration of the disposition of the assets of Balthazar Ferrié’s wife, made by their children in 1816, she is called Francoise, or Francés Gaze, their mother; and in the registration of the assets of Balthazar Ferrié, made by his children in 1823, he is spoken of as Balthazar Ferrié their father add father-in-law, widower of Francoise Gaze their mother. So in the .record of baptism of Jeanne, she is described as the daughter of Jean Icard and Magdalen Riviere. So also in the record of the baptism of her brother Alexis, he is described as the son of John Icard and Magdalen Riviere his spouse. In like manner, in the record of the baptism of her sister Jane, she is described as the daughter of John Icard and Magdalen Riviere. And in the record of the marriage of the parents of .Jeanne, her father is described as the son of John Icard and Louise Fischéere, and her mother as the daughter of P. Rivierre and of Catherine Lafitte. I think, therefore, the argument that these parties were not married derives no force from the circumstance that Jeanne is described in the baptismal record by her maiden name, instead of that of -Ferrié. 'We see that the same practice was uniformly adhered to in reference to those about whose marriage no doubt can be raised; and I think, in this connection, it should be observed, that no inference adverse to the conclusion that she had been married to Ferrié is to be drawn from the fact that, in the certificate of marriage with De Lux, she is described by her maiden name of Jeanne Icard.

I arrive at the conclusion, from all these facts, that we can assume that there was a marriage celebrated between Valentin and Jeanne, either per verba de prcesenti, or before some proper officer, in fulfillment of their publicly declared intentions. I give great consideration, and to which I think it is entitled, to the solemn declaration of Madame De Lux on her death-bed, that she had been married in France during the Revolution, Such declaration, coupled with the frequent assertion that the respondent was her sole heir and would take all she left, could only refer to a marriage with the respondent’s father; and I have no doubt that marriage was in her mind at the time she had the conversation with Madame Grieser. The declarations of the parties, if deceased, that they were married, provided they were made ante litem motam, are admissible evidence of the fact declared. Such declarations, made by the parents in life, are admissible as evidence to establish the legitimacy of their issue. (Goodright v. Moss, Cowp., 591, and cases there cited. See also the answer of the judges to the third question put to them in the Berkley Peerage Case, 4 Camp., 418.) The mere cohabitation of' two persons of different sexes, or their behavior in other respects as husband and wife, always affords an inference of greater or less strength that a marriage has been solemnized between them. Their conduct being susceptible of two opposite explanations, we are bound to assume it to be moral rather than immoral; and credit is to be given to their own assertions, whether express or implied, of a fact peculiarly within their own knowledge. (Hubback on Succ., p. 248, citing Rex v. Stockland, Burr. S. C., 508; 1 W. Bl., 367; Revel v. Fox, 2 Ves., Sr., 270; Doe, ex dem. Fleming, v. Fleming, 4 Bing., 266; Hervey v. Hervey, 2 W. Bl., 877.) “ Cohabitation,” says Lord Stair (Inst., lib. 1, tit. 4), “ and the behavior of man and wife for a considerable time, presumeth marriage, though there be neither contract, promise, nor sponsalia preceding, nor evidence of copulation by children.” How much more reasonable the presumption in the present case, where clearly there was a contract and promise, and there is evidence of copulation by the birth of a child. In Devereux v. Much Dew Church (1 W. Bl, 367), being a question upon the validity of a marriage which was alleged to have taken place after the marriage act of 26 Geo. II, Lord Mansfield said: “In a suit in the Ecclesiastical Court for jactitation of marriage, perhaps it may.be necessary to prove that all the solemnities of the marriage act have been practically and regularly complied with. But God forbid, that, in other cases (the legitimacy of children and the like), the usual presumptive proofs of marriage should be taken away by this statute.”

Hervey v. Hervey (2 W. Bl., 877), was a suit for jactitation of marriage, and it was insisted that direct proof of an actual marriage was essential; and the Chancellor of London and the Dean of the Arches held that the canons did not allow a marriage to be proved, inter vivos, by mere circumstantial evidence; but on appeal to the Delegates it was held that the evidence showed a most solemn and deliberate acknowledgment and avowal on the part of the plaintiff, the husband, of the truth of the marriage that could be devised, and that he should not now be admitted to controvert or impeach it. And they therefore -unanimously pronounced for establishing the marriage. A prominent circumstance relied on as establishing the fact of marriage was that a child, born a few weeks after they proclaimed and acknowledged they were married, was christened, and a brother of the husband and an uncle of the wife were two of the sponsors, and the child was registered as the son of Thomas and Ann Hervey. In the present case the baptismal record was made at the instance of the respondent’s father, and he is therein truly described as the son of Valentin Ferrié and Jean Icard. Does this mean the bastard son of those parents, or their legitimate offspring? The law presumes the latter, and such presumption must control until overthrown.

Wilkinson v. Adam, (1 Ves. & Beame, 422) strongly corroborates this view. At page 462, the Lord Chancellor Eldon says, the rule cannot be stated too broadly, that the description, “ child, son, issue,” every word of that species, must be taken, prima facie, to mean legitimate child, son, or issue; and at page 466 he also says that all the cases go to this, that the description of son, child, &c., means, prima facie, legitimate son, &c. When, therefore, in the solemn act of baptism, the respondent is described as the son of Valentin Ferrié and Jeanne Icard, we are justified in holding that his legitimacy is established, prima facie.

But it is strenuously insisted that the non-production of the act of marriage between the respondent’s parents, or other direct or positive proof of a solemnization of marriage between them, are sufficient to overthrow the presumption which the law' makes of the prima facie legitimacy of the. respondent. The principles of the common law regulating marriage in this State are few and simple. To render it legal and valid, no ceremony, no solemnization, by minister, priest or magistrate, are required. Consent of the parties is the only requisite, and the marriage contract is complete when there is a full, free and mutual consent by the parties capable of contracting, even when such consent is not followed by cohabitation. (Jackson v. Winne, 7 Wend., 47.)

The case of Fenton v. Reed (4 Johns., 52), is entitled to more than a passing notice. The point in controversy was, whether the plaintiff was the widow of Eeed. In 1785 she was the lawful wife of a man named Guest. In that year Guest left the State for foreign parts, and continued absent until 1792; and it was reported and generally believed that he died in foreign parts. The plaintiff, in 1792, married Eeed. In that year, and after the marriage, Guest returned to this State, and continued to reside here until June, 1800, when he died. He did not object to the connection between the plaintiff and Eeed, said he had no claim upon her, and never interfered to disturb the harmony between them. After the death of Guest the plaintiff continued to cohabit with Eeed until his death in September, 1806,'and sustained a good reputation in society; but no solemnization of marriage was proved to have taken place between the plaintiff and Eeed, subsequent to the death of Guest. The suit was brought to recover money which she would be entitled to if the widow of Eeed; and, to maintain, it, she sought affirmatively to establish her marriage with Eeed. The court declared that the marriage of the plaintiff with Eeed, during the lifetime of her husband Guest, was null and void; that she was the lawful wife of Guest, and continued so until his death in 1800; and the true question was, whether there was evidence sufficient to justify the court in concluding that she was afterwards married to Eeed. And the court also say: “ It is stated that there was not proof of any subsequent marriage in fact, and that no solemnization of marriage was shown to have taken place. But proof of an actual marriage was not necessary. Such strict proof is only required in prosecutions for bigamy, and in actions for criminal conversation. A marriage may be proved in other cases from cohabitation, reputation, acknowledgment of the parties, reception in the family, and other circumstances from which a marriage may be inferred. Ho formal solemnization of marriage was requisite. * * A jury would have been warranted, under the circumstances of this case, to have inferred an actual marriage, and the court below had sufficient ground to draw that conclusion; and, as they have drawn it, we will not disturb it.” If the circumstances in that case authorized the inference of an actual marriage, how much stronger are they in the" case now under consideration. There the intercourse between the parties was originally meretricious, and they confessedly lived in adultery until the death of Guest, in 1800. Ho fact was presented, other than that they continued to live together until Reed’s death, from which the inference of a marriage after Guest’s death could be inferred; and it is to be observed, also, that, in this case, the plaintiff sought affirmatively to establish the fact of her marriage with Reed. Less stringent proof is, however, required in matter of pedigree; and the rule would seem to be well settled, that semper presumitur pro legitimations puerorum. (5 Rep., 98 b; Vowles v. Young, 13 Ves., 145.) The law is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy; and, in the absence of evidence to the contrary, a child, eo nomine,' is, therefore, a legitimate child. (2 Hagg. C. R., 197; 4 Eng. Eccl. R.; 13 Ves., 145; Wilkinson v. Adam, supra.) And, in Vowles v. Young, the Lord Chancellor Erskine said, in reference to proof of an actual marriage, that the evidence, especially in the case of obscure families, must be very slight. As sustaining the same rule may also be cited Starr v. Peck (1 Hill, 270); and the qualification of that case, as made in Cheney v. Arnold (15 N. Y., 345), does not weaken its authority on the question of the duty of this court to presume matrimony, when the parties have cohabited, and there are circumstances from which a present contract may be inferred.

I have been unable to find any authority in this State, on a question of legitimacy, which requires the heir, and acknowledged and conceded child, to prove an act of marriage as a requisite to maintain his legitimacy. The presumption and the charity of the law are in his favor; and those who wish to bastardize him must make out the fact by clear and irrefragable proof.

A striking and leading case, as to the controlling character of presumptions, is that of Piers v. Piers (2 H. of Lords Cases, S81). Piers had long been living in concubinage with a woman by whom he had several children. In expectation of the birth of another child, and that he might have lawful children to inherit his estates, he and the. mother of his children desired to be married. And a marriage was alleged to have been celebrated between them in form, but no license was shown from the bishop, nor any entry found in the marriage register. After the birth of two more children, and six years subsequently, a marriage was again celebrated between them, according to law and the forms of the established church, and the lady was described in the marriage certificate by her maiden name, and a child, born after the first and before the second marriage, was baptized as the child of the wife by her maiden name. The question arose as to the legitimacy of the two children bom after the alleged celebration of the first marriage and before the second ceremony of marriage. The House of Lords affirmed the legitimacy of the two children born after the first marriage, holding that, so strong was the presumption in favor of marriage, that it was not rebutted by the circumstances appearing in the case. The principle, fully recognized and established in this case, was, that the question of the validity of a marriage cannot be tried like any question of fact which is independent of presumption, for the reason that the law presumes strongly in favor of marriage, particularly after the lapse of a great length of time. And it is to be observed that the length of time and other circumstances existing in the present case greatly increase the embarrassment and difficulty of proving a marriage over those which appeared in that case. Consequently, we are to give greater weight to the presumption in favor of the marriage, and to be satisfied with proof of a less decisive character. The court, in Piers v. Piers, seemed to adopt the doctrine laid down by Lord Lyndhuest, in Morris v. Davies (5 Cla. & Fin., 163), that “ 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 repelling it must be strong, satisfactory and conclusive.” Lord Oottesthah, in Piers v. Piers, stated the proposition in these words: “A presumption of this sort in favor of a marriage can only be negatived by disproving every reasonable possibility.” “You should negative every reasonable possibility.” Lord Brougham criticised the expression used by Lord Lyhdhurst in Morris v. Davies, that the evidence to repel the presumption must be “conclusive,” and did not concur with him in that respect; but I understand him as going to the full length of affirming the rule as stated by Lord Cottenham.

Applying these principles to the case under consideration, we start with the presumption in favor of the marriage, and which “can only be negatived by disproving every reasonable possibility.” Now, I think the circumstances adduced to overcome this presumption fall far short of accomplishing that object; and those of a contrary character not only more than repel this counter proof, but sustain strongly the presumption that the law makes. (See also the cases of Gaines v. Chew, 2 How. U. S. R., 620; Patterson v. Gaines, 6 id., 550.)

The learned Surrogate has shown, I think, satisfactorily, that the non-production of the acte of marriage, under the circumstances disclosed in this case, does not overcome the presumption of law dr the conclusions of fact derived from the proofs in this case. The authorities cited by him from the French text-writers, and the cases decided in the courts in France, show, I think, conclusively, that if this case was pending in the tribunals of that country, the legitimacy of the respondent would unquestionably be established. As the status of the respondent must, perhaps, be governed by the rules of law applicable to the marriage relation existing there at the time of Ms birth, it is satisfactory to know that the well-established principles prevailing there lead to the same result as those which have been recognized here.

I have arrived' at the conclusion that the presumption of law in favor of the marriage of the respondent’s parents, and his legitimacy, have not been negatived and overthrown by the proof adduced by the contestants; but that such proofs, in connection with this presumption, lead to the conviction in favor of such marriage and his legitimacy.

It follows, that the judgment of the Surrogate and of the Supreme Court should be affirmed.

Lott and Mason, Js.

(the latter with some hesitation), concurred in the preceding opinion, as did Selden and Hoyt, Js., who, not believing Valentin Ferrié was of age at the time of the publication of the bans, thought both parties anxious for a marriage, in fact, and that there was nothing to prevent their accomplishing this purpose in a private and informal way.

Denio,J. (Dissenting.)

The Frenchlaw, respecting the authentication of births, marriages and deaths, which was in force at the time of the alleged marriage of the intestate to Valentin Ferrié, was that which was promulgated by the National (legislative) Assembly, on the 20th September, 1792. A copy of this law was given in evidence. So far as it is material to the present question, it declares that minors cannot be married without the consent of their fathers, if living, or, if not, of their mothers'; and the age of majority is fixed at twenty-one years. It is declared that marriages contracted against these provisions are void. The marriage engagements, or bans, are to be published at the actual place of residence of each of the parties; and, in the case of minors, at the place of actual residence of their fathers and mothers. The act of publication is to be entered in a special register, which must be preserved in the archives of the municipality. It is to contain the Christian names, surnames, professions and places of residence of the future husband and wife, those of their fathers and mothers, and the day and hour of publication, and to be signed by the public officer, to be proclaimed before the principal outer door, of the town hall (maison commune), eight days before the marriage, and to be posted on a tablet kept at the outer door. Persons whose consent is necessary may oppose the marriage. The opposition is to be made in writing, signed by the party opposing, and notice of it is to be given to the parties, and to the public officer, and the latter is to make a brief note of it in the register of publications. The validity of the opposition is to be determined by a juge de gpaix, who is to decide in three days, and there is an appeal to the tribunal of the district, which must give judgment in one week. A note of the judgment is to be made in the margin of the record ' of opposition, in the register of publication. The law then provides for the forms to be used by the parties and the officer, in'concluding the actual contract of marriage. The parties are to declare that they take each other in marriage, and the public officer is to pronounce that they are united in marriage. The act of marriage (or legal document evidential of the transaction) is to be drawn up by'the officer, and is to contain, besides the names and residences of the parties, a number of particulars arranged under six separate heads, including a statement of the consent of the persons whose consent is made necessary, and is to be signed by the parties and officer, by four witnesses, and by the relatives present. It is to be inscribed in duplicate registers, provided by the municipality; one duplicate is to be preserved in the municipal archives, and the other to be kept in the archives of the department.

It does not appear to me necessary to inquire what would be the effect of a marriage actually concluded without the observance of these formalities, or without the consent of parents where the parties or one of them were minors, since the question now presented is whether these parties were married at all. If an actual marriage were shown, and the married parties had subsequently cohabited together with the knowledge of the parents, the offspring would, I presume, be considered legitimate, notwithstanding the strong declaration of the law, that marriages contracted against its provisions should be void. Indeed, I think the intention of the law is to conclude the parents, where they neglect to interpose objections after being duly notified of what is going forward, by the publication of the bans in the manner stated. The French civil code, called the Code Napoleon, promulgated in 1803, declared that a marriage contracted without the consent of parents, where such consent was necessary, could only be impeached by the parties whose consent was requisite, or by such of the two married persons as stood in need of such consent; and that it could not be questioned at all on that ground, where it had been approved expressly or tacitly by those whose consent was necessary, or when a year had elapsed without complaint on their part subsequently to their knowledge of the marriage. (Book I, Title Y, Articles 182, 183.) These provisions may not be specifically applicable to marriages contracted under the law of 1792; still, if it could be shown that these parties were actually married before the birth of the respondent, though no evidence of the consent of the father of the husband could be shown, there would be so strong a presumption of 'his acquiescence that the issue would be held legitimate. But in prosecuting the inquiry whether the parties were really married, the provisions of the law of 1792 furnish important aid. It is quite clear that Ferrié, or those who acted in his behalf in the publication of the bans, were acquainted with the provisions of the law, and had a general intention of conforming to them. The entry, or act of publication, as it is called, states on its face that it is made “in execution” of that law, which is referred to by its date, and it contains, with considerable, though not precise accuracy, the several matters required to be stated. We have, then, this state of facts satisfactorily established: an illicit intercourse between these young people, about to result in the birth of a child; a desire on their part to be married, opposed by the father of Ferrié, the intended husband, and a condition of the law of the country which would render his opposition entirely effectual if it should be exerted, but which he might waive either by express consent or by silent acquiescence on being legally notified, by the publication of the bans, of the attempt of the parties to be married. Then there is a day fixed for the celebration of the marriage, and the notice required by law is given by public proclamation, and. by posting up in the town hall, in the place where the parties and the father of the proposed husband dwelt.

In this statement of the circumstances surrounding the alleged marriage, I have assumed that Valentin Ferrié was a minor, and therefore subject, in this respect, to the will of his father. The record states that he was nineteen years old. This seems to me very satisfactory evidence that he had not attained his majority, though I observe that, in the opinion of the Surrogate, it is suggested that he may have been of age, and that the statement in the entry may be erroneous. I do not feel the force of the suggestion. Besides the general presumption in favor of a fact stated in a contemporaneous written document, prepared at the instance of a party to whom the fact was known, there are special reasons for confiding in the correctness of this record of Ferrié’s age. He wished to be married, and caused the publication to be made for that purpose. If he could have truly stated that he was of lawful age, no opposition arising out of the want of parental consent could be made. He had thus a very strong motive for declaring himself to be of age, if he could do so consistently with the truth; for then the known repugnance of his father to the marriage would be of no avail. But he caused himself to be published as a minor, and thus admitted that his marriage could be prevented by the opposition of his father. But there was a misstatement as to the age of the proposed wife, which was set down as twenty-one years, when she was actually twenty-three, as is shown by the registry of her birth, and it is urged that a mistake might just as readily have occurred in respect to his age as to hers: but the argument that because an error is shown, the other statements are incorrect, would not be a cogent one in any case, while here circumstances exist which show a motive for an understatement of her age. She was, on the assumption that the record is accurate in the parts in which it is not contradicted, about to marry a man some years her junior, and would naturally be disposed to make the difference appear as small as possible. Reducing the disparity would be likely to advance the marriage, by deceiving his relatives, and .could not prejudice it in any way. The fact that she was born in another town, would enable her to -do this without fear of detection, which would not be the case as to Ferrié’s age, the publication being in the place where he was born, and had always lived and where he had a numerous kindred. Besides, she had habitually claimed to be younger than she was. In her French passport, granted in 1815, when she was thirty-eight years old, she caused herself to be described as thirty. In her contract of marriage with Du Lux, in 1812, when she was thirty-five, she was stated to be thirty-two; and to witnesses in Hew York she stated that her child, by which, she was understood to mean the respondent, was born when she was only fifteen, whereas she was then twenty-three. The Surrogate considers that the record is contradicted in this respect by the testimony of the witness, Daflis, and by Catharine Ferrié. The former, who stated he was seventy when he gave his testimony, had been a soldier of the first Empire. He said, in a general way, and apparently without any reference to the bearing of the testimony upon the integrity of the statement in the register of publications, that Ferrié was six' years older than he was. Catharine Ferrié, widow of another Daffis, was Valentin’s sister. She said she was sixty years old and, in the same incidental way, that Valentin was twenty years her senior, which would make him twenty-five at the time of the publication, which, upon all the evidence, is highly improbable. She was apparently an ignorant person, unable to write, as she signed her deposition with a cross • and her statements of time were quite inconsistent with her account of the difference between her brother’s age and her own. She speaks of herself as being about ten years old when the child of Valentin by Jeanne Icard was born, which, if true, would make her sixty-five at the time of giving her testimony, instead of sixty, as she supposes. If is evident that no confidence can be given to these statements, as to the age of Valentin, and they cannot, in my opinion, be considered as impairing at all the authenticity of the statement in that respect, in the entry of the publication of bans.

Recurring, then, to the condition of things existing at the time of the publication of the bans, what conclusion ought to be drawn from the cancellation of the entry in the official register ? The law, it has been shown, provides that where objections are made, they are to be noted in the registry of publications, and to be summarily tried and adjudicated, and the judgment noted in the margin of the entry of the opposition. The argument on behalf of the respondent is, substantially, that the cancellation of the record should not be regarded, because no opposition is noted in the register, and there is no mention of the judgment in the margin. B.ut it must be remembered that the father of Valentin had an absolute right to forbid his marriage until the latter should arrive of age, and that he was opposed to it to such a degree that he turned his son out of doors for persisting in it. He had only to signify his opposition to the proper officer, to render it impossible for the marriage to go on. In such a case it would be unlikely that the forms should be followed out. They were provided for cases in which there should be something to try, and where the parties on both sides should persist in litigating the point. In this case there could be no contest, for the facts were notorious and indisputable, and the right of the father to forbid the marriage was perfect. The natural and probable course in such a case would be for the son, on being notified that the father had taken the legal steps to oppose the marriage, to stop short in his- proceeding. The law made it necessary that the' act of opposition should be signified at the domicil of the parties to the marriage. Hence, Ferrié would regularly be served with,-the proper document. We find that the person in charge of the archives of the municipality not only.canceled the entry of publication by drawing lines across it, but wrote in the margin the word “ neani,” which imported, in that position, that the record had become futile and void—literally, that it amounted to nothing. It seems to me to be precisely such a disposition of the original entry as would be likely to be made if Ferrié had yielded without litigation to the opposition interposed by his father, which he found it impossible to resist, and had so informed the official person entrusted with the records. There is no ground for suspicion upon the evidence that the cancelation was officiously made by any person other than the keeper of the records. They are found in proper custody, and the lines and marginal entry are apparently of the same period as the act which they are intended to cancel. In addition to this evidence that the attempt to marry according to the forms of the law of 1792 was abandoned, there is the absence of any record of the act of marriage. This document, as has been shown, was required to be inscribed upon duplicate registers, one of which was to be preserved in the archives of the municipality, which are kept at the* maison commune. The mayor of St. Girons certifies that the civil acts of marriage, celebrated in that commune, exist in the archives of the city from the year 7 of the Republican era (which ended the 22d September, 1798), down to our own times, and that there is no entry among-them of a marriage between Valentin Ferrié-and Jeanne Icard. There has been, I think, since 1792, somé change in the French local territorial divisions; but it appears that in 1855, when the commission in this case was executed, records of the civil acts of marriage of the commune and of the arrondissement of St. Girons were deposited among the archives of the tribunal of Premiére Instance of the arrondissement; but it also appears that these records do not extend further back than 1st Vendemiaire of the year 11 of the Republic, corresponding with September 22, 1802, and that no record of the marriage in question is contained in them. There does not appear to be any public office besides this where the other duplicate register would be properly deposited. However this may be, when it is shown that the register preserved in the mayoralty of the commune, which was the primary place of deposit, for the proper year, does not contain any record of the asserted marriage, it cannot be necessary to seek for the other duplicate original; for that one, if correct, would, of course, be identical with the one so preserved. The evidence of the destruction of certain records by fire, in the year 7, is of no materiality upon this point of the case, as that year ended in September, 1799, and there is no pretense of a marriage anterior to the publication of bans in May, 1800. That proof seems to have been given to account for the absence of the record of the birth of Valentin.

Thus far, the evidence shows an attempt by the parents of the respondent, a few weeks before his birth, to effect a mar riage according to the forms of the written law of the country, and that that effort was abandoned by the cancellation of the initiatory document, the act of publication. That no marriage took place, according to these forms, is conclusively shown by the absence of any entry of the act of marriage in the register which would regularly have contained it, if it had ever taken place. The parties continued to reside at St. Girons until after the birth of the respondent, and the law required the act of marriage to be recorded at the maison commune of the residence of one of the parties. The appellant has, however, shown, in addition, the absence of any record of their marriage in the several communes in which Jeanne Icard was known to have previously resided.

In a research of this character, .contemporaneous written documents afford a degree of satisfaction beyond any other species of evidence; and, accordingly, the parties have, with great propriety, introduced the record of the baptism of the respondent from the baptismal record of the parish church of St. Girons, signed by the curé. It states that he was born and baptized the 30th June, 1800. His name is given as Balthazar Pierre Ferrié, “son of Valentin and Jeanne Icard:” the godfather, as is stated in the paper, was Balthazar Ferrié, and the godmother Bose Ferrié. The first question which arises upon this paper is, whether the presentation of the child for baptism, and the administration of that rite, of themselves furnish any evidence in favor of legitimacy. If none but legitimate children were admitted to baptism in Catholic countries, or if it was unusual to baptize children born out of wedlock, there would be a presumption in favor of the respondent. But this is not the case. Baptism being the initiatory rite required for admission into the church, and considered generally necessary to salvation, is administered to all infant children, the offspring of Catholic parents, without regard to the social condition or legal status of the latter or their own. This is matter of general intelligence, and it is confirmed by the evidence of a French Catholic priest, from which it appears that illegitimate and legitimate children are indiscriminately presented for baptism. The ■ other inquiry is, whether the argument in favor of legitimacy is supported by anything contained in the record of baptism. There is a suggestion that the statement that the respondent is the son of Ferrié and Jeanne implies that he was legitimate, because a child born out of wedlock is fillius nullius, and could not properly be called the son of any one. This, it is true, is a maxim of the English common law, but it was not very likely to have been known tó, or acted upon, by a priest of a provincial town in France, bio doubt, the description of the child as the son of Valentin is satisfactory evidence of his natural filiation; but I think it does not, of itself, in the connection in which it is here found, prove anything more. But there is the absence of any statement that the child was legitimate; and the mother is not described as the wife of Valentin. The child is simply mentioned as the son of Valentin [Ferrié] and Jeanne Icard. ' There is not much direct evidence as to whether it is usual for the record to refer to the status of the baptized. child. The French priest before mentioned, who had officiated five years in Brittany, says his practice was to describe their condition as legitimate or illegitimate, according to the fact,, where it was known. In the records of baptism incidentally given in evidence for other purposes, it is invariably stated that the child was legitimate. Thus, in the baptismal record of the intestate, Jeanne Icard, in 1777, she is described as the legitimate daughter of Jean Icard and Magdalen Riviere; and her brother Alexis was christened as the legitimate son of the same father and of Magdalen Riviere his spouse, and her half-brother Benoit as the son of Magdalen Biviere married to Antoine .Dezeille. The same practice seems to have prevailed in the records of marriages. In that of the parents of this intestate, in 1774, the married parties are each described as the legitimate children of their respective parents; and in the betrothal and the contract of marriage of the intestate and Du Lux, at the French consulate in New York, in 1812, the legitimacy of both the married parties is stated. I have not thought it proper to consider the evidence upon this point contained in the additional testimony produced by the appellant to the Supreme Court, while this case was pending there upon appeal; being of opinion that it can only be reviewed upon the proofs which were before the Surrogate. But, upon the regular proofs it appears that the practice, to say the least, was quite common to insert the fact of legitimacy in such entries when it could be done consistently with the truth. In such documents prepared here, and relating to citizens of this country, a direct statement that the child was legitimate would not be usual, though, if the parents were named, the mother would naturally be described as the wife of the other parent. In this case, the statement that the baptized child was the son of Valentin Ferrié and of Jeanne Icard, without adding, his wife, does not convey the idea of the marriage of the parents or the legitimacy of the offspring, if it does not suggest the contrary inference. I do not attach, any importance to the use of the maiden name of the mother, for I understand that to be a common usage in France. But the absence of any statement showing that the parents were married to each other affords, in connection with the usage which has been mentioned, some evidence that they did not pretend to have entered into that relation. And this presumption acquires additional force from the consideration of the other circumstances of the case. If these persons were ever married, it was within two months of the birth of their child and of this baptismal ceremony. During the greater part of the period of gestation, their connection had been notoriously illicit, and on the 4th of May they were confessedly unmarried. That they desired that their child, when born, should possess the status of legitimacy, is evident from the publication of the bans. If that act had been followed up by marriage before the birth of their offspring, it could scarcely fail to be known to the priest of the parish; and, if known, it is not easy to conceive a reason why the usual form of such instruments was departed from, when the effect of the change would be to conceal or render doubtful a fact well known to all connected with the ceremony, and the perpetuation of which would be of importance to the character of the family and the interests of the child.

But the godfather and godmother were Balthazar Ferrié and Bose Ferrié. The testimony does not afford any clue to the last named of these persons, except that her name indicates that she was probably related to the father of the child. But the Christian name of the father of Valentin was Balthazar; and if he was the person who stood up as godfather, it would lead to an inference of some strength that he had waived his objections to a union between his son and the mother of the respondent, and something of what has been said would be inapplicable. It would not by any means be conclusive upon the point, for the father of Valentin might be willing to assume the imperfect obligation of a sponsor to his son’s illegitimate offspring, when he would not be willing to see the son united in marriage to its mother. Still, it would be a circumstance of some weight; and it is, therefore, an important inquiry whether it was the grandfather or some other Balthazar Ferrié who stood up as godfather at the baptism of the respondent. The Surrogate inclines to the opinion that it was the grandfather, and says that the fact, if true, would prove not only his consent to the marriage, but the legitimacy of the child. The respondent’s counsel have not insisted on that view, and it is not sustained by the evidence. It was shown that there was another Balthazar Ferrié of St. Girons, a relative of Valentin, who was of a suitable age to have been the godfather. One Victor Ferrié, of St. Giro