text:
    BLUM, Appellant, v. NEW YORK LIFE INSURANCE COMPANY et al.
    Division Two,
    June 19, 1906.
    1. INSURANCE: Vested Right. In ordinary old-line life insurance, the issue of a policy confers immediately a vested right upon, and raises an irrevocable trust in favor of, the party named as beneficiary, a right which no act of the insured can impair without the beneficiary’s consent.
    2. -: -: Changing Beneficiary: Statute of 1899: Retrospective. Where the policy was issued in 1880, naming the in- ■ sured’s then wife as beneficiary, and the payment of premiums was completed and a paid-up policy issued in 1895, the company then agreeing to pay to said wife upon the death of the insured. a definite sum, her rights under the statutes then in force becoming then permanently fixed and vested, an amendment to the statute in 1899, providing that “in the event of the death' or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary”, did not thereafter, upon the legal divorcement of the wife, give the husband the right to name some other person as beneficiary. Such amended statute cannot control the vested rights of the beneficiary acquired under prior laws existing at the time the policy was issued, and to apply it in such case would be to make it retrospective.
    3. -: -: -: Insurable Interest: Divorce. A decree of divorce, rendered after the tontine policy premiums were paid and paid-up policy was issued, did not destroy the insurable interest of the wife, named as beneficiary," in the’ life of her husband, the insured. If the policy was originally valid it does not cease to be so because of the beneficiary’s cessation of interest in the subject of the insurance.

      4. -: Divorce: Insurable Interest: Fixed Rights: Subsequent Statute. Where the rights of the beneficiary, the wife of the insured, to assign the policy, or to accept a cash value on the surrender thereof, or otherwise, became fixed prior to the enactment of the statute providing that upon “the death or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary,” he is not entitled to designate another beneficiary after a decree divorcing the wife. Such decree did not destroy her insurable interest in the life of her husband, nor does it prevent her from invoking the rule of law applicable to the vested rights of the beneficiary.
    5. -: Changing Beneficiary: Statute: Where Wife ,is Not Sole Beneficiary. The statute authorizing the insured husband to designate another beneficiary upon “the death or divorcement of the wife before the decease of the husband” has no application where the wife is not the sole beneficiary. So that where the policy provided that the amount of the insurance was, upon the death of the husband, to be paid to the wife if living, and if not living, to tjie husband’s children, or if there be no such children surviving them, to his legal representatives, the husband’s child has a substantial interest in the policy, and though that interest be contingent upon the death of the wife prior to the death of the husband, he cannot, after a decree dissolving the marriage, change the beneficiary. The amendment to the statute does not apply in such case. It applies only when the wife is named as the sole beneficiary.
    Appeal from St. Louis City Circuit Court. — No». Warwick Hough, Judge.
    Affirmed.

      Wilson A. Taylor and William 8. Campbell for appellant.
    The right of the plaintiff to designate another beneficiary in this policy is given by the statute, which right he may exercise in the event of the death or divorcement of the wife. R. S. 1899, sec. 7895. Prior to the original enáctment of this section of the statute giving to the wife a vested interest in a policy of insurance expressed to he for her benefit, the husband could, without the consent of the wife, change the beneficiary or assign the policy. 3 Am. and Eng. Ency. Law (2 Ed.), 981; Eckel v. Renner, 41 Ohio St. 232; Living v. Domett, 26' Hun 150; Kerman v. Howard, 23 Wis. 108. The purpose of enactment of statutes taking away from the husband the right to assign the policy, or in any way interfere with it, was to protect the wife so that in case she survives him the proceeds might go to her free from his creditors. Ins. Go. v. Brant, 47 Mo. 419; Pullis v. Robinson, 73 Mo-. 201; Riely v. Hickcox, 70 Mo. App. 617. The proviso added to this same section by the amendment giving the husband theright to designate another beneficiary in the event of the death or divorcement of the wife, does not create a new right, but reserves to him a part of the rights which the original enactment took away. Kittel v. Domeyer, 175 N. Y. 205. By the language of the statute the amendment applies to “any policy of insurance heretofore or hereafter made. ’ ’ It therefore applies to this policy, although issued prior to the amendment. The amendment is not retroactive and does not destroy a vested right. Kittel v. Domeyer, supra; Videan v. Westover, 29 Ont. Rep. 1; Estate of Breitung, 78 Wis. 33; Clark v. Durant, 12 Wis. 223; Kerman v. Howard, 23 Wis. 108; Bursinger v. Banks, 67 Wis. 75; Riley v. Vaughn, 116 Mo. 169; McClain v. Abshire, 63 Mo. App. 333; Ins. Co. v. Ryan, 8 Mo. App. 535. The interest of the alternative beneficiary designated in a policy of insurance is only a contingent interest. Casualty Co. v. Kacer, 169 Mo. 301; Reed v. Painter, 129 Mo. 684; Baker v. Young, 47 Mo. 454. While, as a general rule, the right of the beneficiaries or their heirs cannot be defeated by the action of the insured and the company, without the consent of the beneficiaries, or their heirs, yet “this rule is of general application only when the contract of insurance is made by the beneficiary and the premiums paid by him or some third person for him.” Shields v. Sharp, 35 Mo. App. 178. The decree of divorce has the effect of destroying the insurable interest of the divorced wife in the life of the husband. After the granting of the divorce she has no interest in the continuance of the life of the husband, but does have an interest in his death, provided she still remains owner of the policy, and her rights in the policy terminate, except in so far as she has paid the premiums. Hatch v. Hatch (Tex.), 80 S. W. 411.

      Judson & Green for respondent New York Life Insurance Company.
    (1) The right to change the beneficiary named in the policy and the method by which such change shall be accomplished is a part of the contract of insurance, and the legislature could not alter or impair this contract by the act in question. Collins v. Life Assn., 85 Mo. App. 242; Huff v. Woodmen of the World, 85 Mo. App. 96; Leete v. Bank, 115 Mo. 198; State v. Miller, 66 Mo. 328; State ex rel. v. - Laclede Gras L. Co., 102 Mo. 472. (2) The statute in question does not, by its terms, apply to policies in which any other person than the wife is named as one of the beneficiaries, and this court will not extend it by construction so as to make it apply to this policy and operate to deprive the child, a beneficiary not named in the statute, of his interest in the policy. Cranor v. School District, 151 Mo. 119. (3) It is evident from the language of this section, considered in connection with other existing statutes upon the same subject, that the legislature did not intend this act to apply to this case in which the wife has obtained a divorce for the fault of the husband. It was only intended to apply to cases in which the husband obtains a divorce for the fault of the wife. R. S. 1899, secs. 2929 and 2930; Schuster v. Schuster, 93 Mo. 438.

      Rassieur, Schnurmacher $ Rassieur• for respondents.
    (1) The beneficiary in a paid-np policy of insurance has a vested interest therein, which can not be destroyed without the beneficiary’s consent. Casualty Co. v. Kacer, 169 Mo. 313; 3 Am. and Eng. Ency. Law, 980, 982. (2) This vested interest can not be defeated by subsequent retroactive legislation. Leete v. Bank, 115 Mo. 198. (3) The insurable interest of a wife in the life of her husband is not destroyed because of a divorce subsequently obtained. McKee v. Ins. Co., 28 Mo. 386; Ins. Co. v. Schaefer, 92 IT. S. 457; Appeal of Corson, 113 Pa. St. 447; Scott v. Dickson, 108 Pa. St. 13; 9 Am. and Eng. Ency. Law, 855. (4) Section 7895, Revised Statutes 1899, has no application to policies issued in favor of the wife and paid for out of her own means. Sec. 7892, R. S. 1899. (5) Section 7895, Revised Statutes 1899, has application only to policies in which the wife only is named as sole beneficiary — not to policies in which other beneficiaries are named to succeed to the fund in the event of her prior death. (6) The contingent interest of the children who are named as beneficiaries to take only in the event of the death of the wife, becomes vested upon the happening of that contingency, and cannot be destroyed by any action on the part of others. Appeal of Brown, 125 Pa. St. 303; Ins. Co. v. Burroughs, 34 Conn. 305. (7) Section 7895, Revised Statutes 1899, has application only to policies in which the wife is named as sole beneficiary, and where the husband obtains a divorce from her — not-to cases where the wife obtains a divorce from the husband on the ground of his misconduct.
   FOX, J.

This cause is here by appeal on the part of the plaintiff from a judgment of the St. Louis Circuit Court in favor of the defendants and dismissing plaintiff’s bill.

This action was brought by the plaintiff, Louis Blum, against New; York Life Insurance Company, Fannie Blum, wife of the plaintiff, and Melvin Blum, son of Louis and Fannie Blum. Plaintiff, Louis Blum, and Fannie Blum, defendant, were married on the 19th day of June, 1879. On the 21st day of June, 1880, the defendant New York Life Insurance Company, at the request and upon the application of the plaintiff, Louis Blum, issued to Louis Blum its policy of insurance, numbered 142,767, on the tontine investment plan, commencing on the 17th day of June, 1880, in which the defendant Fannie Blum was named as the beneficiary. Said policy was issued in consideration, among other things, of the payment of the annual premium of $144.30. The tontine dividend period in said policy was completed on the 17th day of June, 1895, at which time said policy was endorsed for a like paid-up policy for $4,210. This amount the New York Life Insur-anee Company agreed, upon the death of Louis Blum, to pay to said Fannie Blum, for her sole use, if living, and if not living to the children of plaintiff or their guardian for their use, or if there be no such children surviving them, to the legal representatives of said plaintiff. In 1901 said Fannie Blum instituted her suit for divorce against said Louis Blum, her husband, and on September 12, 1901, the court “being satisfied that plaintiff is an innocent and injured party and entitled to the relief prayed for in the plaintiff’s petition,” adjudged that she be divorced from the bonds of matrimony existing between them and that she recover her costs, etc. The defendant Melvin Blum was born of said marriage in the year 1880, and was at the date of said action by the plaintiff of age. Following the granting of said decree of divorce the plaintiff, Louis Blum, made application to the defendant New York Life Insurance Company, with a view to having the beneficiary named in the policy changed in accordance with the rights granted him under and by virtue of section 7895 of the Revised Statutes of Missouri of 1899. The New York Life Insurance Company refused to consent to change the beneficiary in said policy, whereupon this suit was instituted by the plaintiff for the purpose of having said policy reformed by the substitution of a beneficiary to be designated by the plaintiff, Louis Blum.

The pleadings in this cause are not challenged, therefore there is no necessity for reproducing them here. The petition sought the relief as heretofore indicated and the answer substantially put in issue the right of the plaintiff to the relief sought.

Upon the trial of the cause there was testimony both ways as to the payment of premiums upon this policy. The testimony on the part of the plaintiff tending to show that he paid the premiums; there was other testimony tending to show at least that Mrs. Fannie Blum, one of the defendants, paid some of the premiums. There was other testimony tending to show that defendant Fannie Blum advanced her husband large amounts of money during the time upon which premiums had to be paid upon this policy which amounts were never fully repaid to her, and that such advancements largely exceeded the premiums paid on the policy.

Upon the submission of this cause the trial court found the issues in favor of the defendants and dismissed plaintiff’s bill. Plaintiff timely filed Ms motion for new trial, which was by the court overruled, and in due time and proper form he prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The crucial questions presented for consideration upon this record may thus be briefly stated:

1. On the part of the appellant it is insisted that he has the right to designate another beneficiary in the insurance policy in pursuance of the provisions of section 7895, Revised Statutes 1899, which substantially provides for the exercise of that right in the event of the death or divorcement of the wife.

2. On the part of the respondents it is insisted that the policy of insurance involved in this proceeding is a paid-up policy and has been since June, 1895; hence defendant, Fannie Blum, had a vested interest in such policy prior to the amendment of the statute in 1899, providing for the substitution of another beneficiary in the event of the divorcement of the wife, and, therefore, such vested right could not be impaired by the amendment in 1899, and that such amendment has no application nor does it govern policies issued and fully paid up prior to the enactment of such amend ment.

3. Respondents earnestly contend that this policy is an old-line policy, which became paid up on June 17, 1895, so that thereafter no premiums became payable thereon, and that the policy upon its face is made payable, first to Fannie Blum, the wife, if living; second, if not living, then to the children of plaintiff; third, if there be no children living then to the legal representatives of plaintiff, and Fannie Blum, the wife, primary beneficiary, and Melvin Blum, the only child, the alternative beneficiary both being alive, section 7895, supra, has no application to this policy for the reason that it is not the character of policy designated by the statute. It is insisted that the statute only covers and contemplates such policies as are issued in which the wife is made the sole beneficiary.

4. It is further insisted by respondents that the amendment to the statute in 1899, providing for the exercise of the right to change beneficiaries in the event of the divorcement of the wife before the decease of the husband, has application alone to policies in which the husband secures a divorce from the wife by reason of her misconduct, and is not applicable where the wife secures the divorce by reason of the misconduct on the part of the husband.

These are substantially the vital questions with which we are confronted in this controversy. The propositions will be treated in the order as herein indicated. Their correct solution must be sought by a fair and reasonable application of the law governing them.

The policy sought to be changed in this proceeding'was issued in 1880. At the time of the issuance of this policy section 5981, Revised Statutes 1879, was in force, which provided: “Any policy of insurance heretofore or hereafter made by any insurance company on the life of any person expressed to be for the benefit of any married woman, whether the same be effected by herself or by her husband, or by any third person in her behalf, shall inure to her separate use and benefit, and that of her children, if any, independently of her husband, and of his creditors and representatives, and also independent of such third person effecting the same in her behalf, his creditors and representatives ; and a trustee may be appointed by the circuit court for the county in which such married woman resides, to hold and manage the interest of any married woman in such policy, or the proceeds thereof. In the event of the death of such married woman before her husband, the said policy shall inure to the children of such marriage, to the exclusion of creditors and executors and administrators of said husband, any technical words or phrases in the policy to the contrary notwithstanding. ’ ’ This section remained in force until in 1899, when section 7895, Revised Statutes 1899, was adopted in lieu of section 5854, Revised Statutes 1889, .which was the same as section 5981, Revised Statutes 1879, above quoted.

The change as made by section 7895 from that of the law in force in 1879 and 1889,.which has any application to this controversy, is as follows: “Provided, however, that in the event of the death or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary, upon written notice to the company, but such notice shall not be effected, unless indorsed upon the policy by the president or vice-president and secretary of the company issuing the policy. ’ ’

It will be observed that prior to the amendment of the statute in force, at the time of the issuance of this policy, and at the time it became a completed paid-up policy, there was no provision which authorized the assured to make the change in the beneficiary which is now sought to be made under the provisions of section 7895, supra. The nature and character of the rights secured to the beneficiary in an old-line policy is no longer an open question in this State. In Masonic Ben. Ass’n v. Bunch, 109 Mo. 560, it was expressly ruled that the beneficiary’s interest in an insurance policy along these lines becomes a vested right immediately upon the issuance of the policy. This ruling was followed and expressly approved in Wells v. Mut. Ben. Ass’n, 126 Mo. l. c. 638, and in United States Casualty Co. v. Kacer, 169 Mo. 309. In the last case cited the authorities were all reviewed and the rule in the case of Bank v. Hume, 128 U. S. l. c. 206, was approvingly quoted. It was said in that case by Mr. Chief Justice Fuller, speaking for the Supreme Court of the United States: “It is indeed the general rule that a policy, mid the money to become due under it [the italics are superadded to point the applicability of the language used to the respective contentions of the -parties hereto as to the interest of the beneficiary in the ‘policy’ and in the ‘fund’] belong, the moment it is issued, to the person or persons named in it as the beneficiary or beneficiaries, and that there is no power in the person procuring the insurance by any act of his, by deed or Tby will, to transfer to any other person the interest of the person named.”

The rule is thus stated in 3 Am. and Eng. Ency. Law (2 Ed.), 980: “In ordinary life insurance, where no power of divestiture is reserved, the general doctrine prevails that the issue of the policy confers immediately a vested right upon, and raises an irrevocable trust in favor of, the party named as beneficiary, a right which no act of the insured can impair without the beneficiary’s consent.” In support thereof cases are cited in, note 10, which show this to be the rule in England, Canada, Supreme Court of the United States, Alabama, Arkansas, California, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Virginia.

Under the law in force at the time this policy was issued and at the time it became a completed paid-up policy the rights of the defendant Fannie Blum, the beneficiary named in such policy, were permanently fixed and vested and we are. simply confronted with the proposition as to whether or not the amendment to the laws subsequent to the issuance of the policy, which provide the right to change the beneficiary upon the happening of certain contingencies, can be made applicable to such policy. In other words, are the provisions of section 7895 retrospective in their operation and would they, as applicable to this policy, impair vested rights acquired by the defendant beneficiary Fannie Blum under prior existing laws?

We have given this subject our most careful consideration and we see no escape from the conclusion that section 7895, Revised Statutes 1899, which provides the right of the husband to designate another beneficiary, has no application and cannot govern or control the rights of the beneficiary acquired under prior existing laws. That the defendant beneficiary Fannie Blum’s rights in that policy acquired under laws existing at the time it was issued, and the policy fully paid-up, were fully vested, we think there can be no dispute. It is equally clear that should we apply the amended provision in the laws of 1899, heretofore indicated, to the rights of the beneficiary in the policy, the vested rights of the beneficiary acquired under prior existing laws would be manifestly impaired; hence such provision can not be made applicable to this policy, for the manifest reason that to do so would be mailing such provisions retrospective in their operation and violative of article 2, section 15, of the Constitution of this State. To apply the provision of section 7895 to this policy would clearly take away the vested rights of the beneficiary, Fannie Blum, in this policy. Mr. Justice Story, when construing a provision of the organized law of New Hampshire, substantially like our own, said: “Every statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective.” [Society v. Wheeler, 2 Gall. 105.] This definition has since been followed. [Sedgwick on Construction of Constitutional and Statutory Law (2 Ed.), p. 160.]

It was ruled in Cranor v. School District, 151 Mo. 119, the court speaking through Burgess, J., that a law should always be deemed prospective when vested rights may be affected, and in that case in discussing a statute which had made material changes in the prior law, it was held that the plaintiff’s right of action had accrued under the prior law, and it was there said, speaking of the act in judgment before the court, that “there is nothing in the act which would seem to indicate that it is retrospective, and if there was as to plaintiff’s right of action, it would be unconstitutional. It can therefore only be upheld upon the ground that it is prospective, rather than retrospective.”

However; it is insisted upon the part of the appellant that the decree of divorce rendered by the circuit court in 1901, in which Fannie Blum was granted a divorce on the ground of the misconduct of the plaintiff, destroyed the insurable interest of the divorced wife in the life of the husband; therefore, that the rule of law applicable to the vested rights of the beneficiary cannot be invoked in her behalf. While there is some conflict in the authorities upon this proposition the weight of authority seems to be that if the policy was originally valid it does not cease to be so by cessation of interest in the subject of insurance.

In Appeal of Corson, Ex’r of McLane, 113 Pa. St. 438, the Supreme Court of Pennsylvania fully reviewed all the authorities upon the subject of insurable interests, and Mr. Justice Clark, speaking for that court, thus announced the conclusion: “The doctrine of all the cases to which our attention has been called is, that if the policy was originally valid, it does not cease to be so by cessation of interest in the subject of insurance ; unless such be the necessary effect of the provisions of the instrument itself. Therefore, where a husband insured his life for the benefit of his wife, and was subsequently divorced, it was held that, notwithstanding the relation of husband and wife no longer existed, and her insurable interest had thus ceased, yet she could recover the full amount of the policy. [Conn. Mut. Life v. Schaefer, 4 Otto 457.] Supposing a fair and proper insurable interest of whatever kind,’ says the court in the case last cited, Ho exist at the time of taking out the policy, and that it be taken out in good faith, the object and purpose of the rule which condemns wager policies is sufficiently attained; and there is then no good reason why the contract should not be carried out according to its terms.’ To the same effect is McKee v. Phoenix Co., 28 Mo. 383.”

In Conn. Life Ins. Co. v. Schaefer, 94 U. S. 457, Mr. Justice Bradley, in discussing this subject, said: “We might almost regard the English statute as declaratory of the original common' law, and as indicating the proper rule to be observed in this county where that law furnishes the only rule of decision.” In that case the policy was taken by husband and wife upon their joint lives, payable to the survivor on the death of either. Subsequently they were divorced a vinculo matrimonii, and the wife having paid the premium up to the time of her former husband’s death, brought suit on the policy. It was held that the policy, being valid at its inception, the subsequent cessation of her interest .in the life insured did not affect her claim, the court saying: “The essential thing is that the policy shall be obtained in good faith, and not for the purpose of speculating upon the hazard of a life in which the assured has no interest. ’ ’

The Supreme Court of Pennsylvania, in Scott v. Dickson, 108 Pa. St. 6, in commenting upon the rule announced by Justice Bradley, said: “It requires but a■ moment’s reflection to see that this rule is based upon sound principles. It treats a contract of life insurance, not as a contract of indemnity, as in the case of fire or marine insurance, but as a contract to pay a certain sum of money in the event of death. And if the policy fell with the cessation of insurable interest it would lead to this result. A. is a creditor of B. to the extent of $1,000 and insures his life to that amount. He continues the policy until he has paid in premiums, say, $1,100. B. then pays the debt. If the policy ceases as soon as the debt is paid, A. loses all he has paid, and in reality is out of pocket $100, although he has received his debt in full.”

The doctrine announced upon this subject in the foregoing eases finds support in 9 Am. and Eng. Ency. Law, 855, and cases cited in the note.

There is no provision in this policy respecting the cessation of interest in the subject of insurance, and it is clear that under the law in force prior to 1899, Mrs. Blum could have at any time, without the consent of her husband, assigned the policy, subject only to divestiture in her assignee, in the event of her death before the death of the insured, as stated in the policy. Nor can it be denied that she could, prior to 1899,' have made a valid surrender of the policy and accepted its cash value, without the consent of her husband, subject only to the proviso that she survive the insured; and these rights cannot be taken from her under the act of 1899, which law went into effect many years, subsequent to the time that her rights were permanently fixed and vested; therefore, it must be held that plaintiff is not entitled to -the relief sought by reason of the dissolution of the marriage in 1901.

This leads us to the consideration of the second proposition, that is, are the provisions of section 7895, providing for the change of the policy in case of death or divorcement of the wife applicable to any policy except those in which the wife is the sole beneficiary?

We have in this policy, as the contract of insurance, the promise and agreement on the part of the insurance company to pay the amount of such insurance to the wife, if living, and if not living, to the children of such person whose life is hereby insured, or their guardian for their use, or if there be no such children surviving them to the legal representatives of such person whose life is hereby insured.

The provision of the statutes which provides the right of the husband to change the beneficiary upon the death or divorcement of the wife, clearly designates the character of policy to which such provisions are made applicable. It plainly provides that it must be a policy expressed to be for the benefit of the wife of the insured, and in this policy we have a contract of insurance for the benefit of, not only the wife, but as well the child of the insured. It is manifest that section 7895 does not by its terms apply to policies in wbicb any other person than the wife is named as one of the beneficiaries, and we are of the opinion that this court would not be warranted in extending the provisions of the statute by construction so as to make it apply to this policy and operate to deprive the child, Melvin Blum, a beneficiary, which is included in the contract of insurance, of his interest in the policy. If the plaintiff is entitled to the relief sought under the provisions of section 7895, to change the beneficiary therein named, Fannie Blum, such relief would enable him to change the entire contract of insurance as to his child Melvin Blum, now living, who has a substantial, interest in the policy as now written, for should the death of Mrs. Blum occur prior to that of the plaintiff, under the terms of the policy, the amount would be payable to Melvin Blum.

Under the provisions of the statute of 1879, it will be observed that there was no provision for a change in the beneficiary, even in the event of the death of the wife, but it simply provided, in the event of the death of the wife the policy was to enure to the children; hence under the provisions of the statute of 1879, there being no provision for changing the beneficiary, if there were no children surviving, then the fund would necessarily go to the heirs of the wife. The very purpose of the amendment of the law of 1879 was obviously to give to the husband the right of substitution in the event of the death or divorcement of the wife, so that in the event of the happening of either of these contingencies he should determine whether the fund should go to the children, if there were any, so that he could prevent it going to the legal representatives of the deceased wife, and upon distribution to her next of kin, if he wished to do so. But clearly the provisions of the statute of 1899 were never intended to apply to policies wherein other persons in connection with the wife are named as beneficiaries; if so, we must import into the statute a provision extending to him, in addition to the right to change the beneficiary in respect to his wife, the right to materially modify the contract of insurance and change other beneficiaries who have substantial interests in the policy in connection with the wife. These provisions must be applied to the character of policies designated by the statute, and the contract of insurance must be construed in connection with the law in force that governs and controls it, and if the parties to the contract desire to contract insurance in which the wife is beneficiary, with the view of availing themselves of the provisions of the statute' granting the right to change the beneficiary, the terms of such contract of insurance must conform to the provisions of the statute which limits the application of such provisions to policies expressed to be for the benefit of the wife of the insured. Policies in which other beneficiaries are designated to take in the event of the death of the wife are not embraced in section 7895, and as to such policies the right to substitute another beneficiary is not given by the statute and does not fall within the purview of its provisions.

It is earnestly contended and very ably argued that the children as named in the policy have only a contingent interest, therefore the right to invoke the provisions of section 7895 in respect to the change of the beneficiary is not affected. It is true their interest is contingent upon the death of the mother prior to the death of the father, but it is equally true that this is a substantial interest in that policy, and the children of the husband were as truly parties to that contract as the wife, and is such an interest as under the provisions of the statute the husband had no right by the change of the beneficiary to deprive them of.

The Supreme Court of Pennsylvania, in Appeal of Andrew J. Brown, 125 Pa. St. 303, very clearly and correctly states the law upon this proposition. The terms of the policy in that case were very similar to those in the case at bar. A New York insurance company issued a policy upon the life of a citizen of Pennsylvania payable to the wife of the assured for her sole use, but provided that in case of- her death before the decease of the assured the amount of the insurance should be payable to her children. The assured and his .wife, doubtless taking the view of the law, as is suggested by counsel for appellant, that the interest of the children was a mere contingent interest, undertook to dispose of this policy and both husband and wife joined in an assignment of the policy. The wife died leaving the assured and seven children to survive her. On the death of the assured an interpleader was instituted to determine the rights as between the parties, to whom the policy had been assigned and the children of the assured. The Supreme Court of that State held that the children were entitled to the insurance money and very clearly pointed out the reasons for such conclusion. The court said in speaking of the rights of the children: “Their right to the money depended upon the terms of the contract, which was payable to them if she was not living at the death of the insured. They were parties to the contract, as truly as she was, and with as clear a right to sue upon it, upon the happening of the contingency that made them the payees, as she could have had if living. Her assignment put her assignee in no better position than she occupied, and conferred upon him no greater interest in the policy. Her death in the lifetime of her husband extinguished her interest in the policy, and it can no more survive in the hands of her assignee than in her administrator. The condition on which her right to recover was to end, and that of her children was to arise, has happened, and the contract of the insurance company is now with the children, and must be enforced by them for their benefit. ’ ’

To the same effect is Conn. Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305. So it may be said as to the policy involved in this proceeding, that to apply the provisions of section 7895 to this policy would permit the plaintiff, by changing the beneficiary, to materially affect the interest of his son Melvin Blum, in this policy, and in our opinion the terms employed in the provisions of the policy in the case at bar place it beyond the provisions of that section.

We see no necessity for pursuing this subject further. We have indicated our views upon the most vital propositions involved in this proceeding, and deem it unnecessary to dispose of the other question presented, as to whether or not this statute can be invoked where the divorcement of the wife is occasioned by the wrongful acts of the husband. We express no opinion upon that proposition, and will postpone the consideration of it until a case is presented in which it becomes essential to decide. We find no error in the judgment of the trial court. Its order, dismissing plaintiff’s bill, was clearly right; the judgment should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    ANNA D. TOPPER et al., Appellants, v. PERRY et al.
    Division Two,
    June 19, 1906.
    1. COMMON LAW MARRIAGE: Evidence: Declarations of Deceased. .Declarations and admissions of the deceased man that he was married to and was the husband of the plaintiff, in a suit by her to quiet and determine the title to land owned by him in his lifetime, are competent evidence to establish the existence of a valid marriage according to the common law. So also are the denials of said deceased man that he was married to plaintiff, made in his lifetime, competent evidence to the contrary.

      2. -: -: -: Pedigree: Self-Interest. Where the issue is pedigree, the general rule that self-serving statements and declarations made by the deceased during his lifetime are not admissible, does not apply. Where the issue is whether or not a valid marriage according to the common law existed between deceased and a certain other party, declarations by deceased that 'there was no marriage are competent evidence, as against the other party to the pretended contract, and in favor of the heirs of the deceased.
    3. -: Necessary Elements. To establish a valid common law marriage there must be not only reputation and cohabitation as a sequence thereof, but a present contract through words by which the man agrees to take the woman as his wife and the woman agrees to take the man as her husband.
    4. -: -: Sufficiency of Evidence. The plaintiff testified that she and deceased had been engaged for a year; that deceased, as they were on the public road going to her home on the night of July 4th, said “she was his wife under obligations, and wanted to hold marriage relations with her; that at first she objected, but he persisted. She wanted to have a ceremony before they had marriage relations, and he said it was unnecessary; that marriage was simply a contract between man and woman, and that she was just as much his wife as she would be if the ceremony was said if they held marriage relations, and he insisted, and then she agreed to hold marriage relations with him, and from that time on he acknowledged her as his wife.” She did not testify to any promise on her part to become his wife and there was much evidence on her part that she still regarded a ceremony as necessary. She went to her home at her brother’s house, and the alleged marriage was kept secret, and she did not begin to live with him until December, when he repaired a house on his own farm, and after that they openly lived together and maintained marriage relations until his death two months later, but the evidence strongly preponderates that they were not regarded in their neighborhood as lawfully married. There was no legal impediment to a lawful marriage, and her son, insisting that there be a formal ceremony, on the man’s refusal, killed him. Held, that the trial court, who had the witnesses before him, did not err in holding that a valid common law marriage was not established by the evidence.
    Appeal from Lawrence Circuit Court. — Hon. Henry C. Pepper, Judge.
    Affirmed,

      William B. Skinner and Henry Brumback for appellants.
    (1) The court erred in admitting in behalf of defendants declarations of Ambrose G. Topper to the effect that he was not married to plaintiff, alleged to have been made in her absence to witnesses. Such declarations were not against the interest of declarant, but were self-serving and were such in their nature as decedent could not have introduced in his own behalf in his lifetime, and did not become competent after his death. Rice v. Waddell, 168 Mo. 121; Gentry v. Field, 143 Mo. 411; Tucker v. Tucker, 32 Mo. 468; Perry’s Admr. v. Roberts, 17 Mo. 36; Armstrong v. Johnston, 93 Mo. App. 500; Johnson v. Burke, 103 Mo. App. 231; Hutchinson v. Hutchinson, 63 N. E. (111.) 1027; Criddle v. Criddle, 21 Mo. 522; Darrett v. Darrett, 38 Mo. 495; Teller v. Patten, 20 How. 125; Wood v. Carpenter, 166 Mo. 485; Railroad v. Yiew, 156 Mo. 618. “A reputed husband’s declarations in denial of his marriage cannot be admitted to disprove it.” Hill v. Hill’s Admr., 32 Pa. (8 Casey) 511; In re Moore’s Estate, 0 Pa. Co. Court Rep. 338; Greenawalt v. McEnnelley, 85 Pa. St. 352. “The declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses.” 1 Greenleaf, 341; Gaines v. Reef, 12 How. 534; Hoffman v. Hoffman’s Exr., 126 Mo. 496. These declarations were inadmissible, too, as against the minor plaintiff, Ambrose Topper, Jr. Wood v. Carpenter, 166 Mo. 485. (2) The court erred in rendering judgment in favor of defendants. The judgment is not supported by the evidence, but is contrary thereto. Dyer v. Brannock, 66 Mo. 391; Cargile v. Wood, 63 Mo. 51; Adair v. Mette, 156 Mo. 496; Green v. Green, 126 Mo. 17; 1 Bishop, Marriage and Divorce, sec. 229; Orthwein v. Thomas, 21 N. E. (111.) 431; Ash-ford v. Ins. Co., 80 Mo. App. 643; Adger v. Akerman, 115 Fed. 124.

      John T. Burgess and French <& Mayhew for respondents.
    Heré is a case where plaintiffs sought to show that the deceased Topper was introducing plaintiff as his wife and holding her out to the world as such; this could only he refuted by showing the contrary, and instead of admitting the fact that she was his wife he was constantly saying she was not, and therein lies the distinction between this case and authorities cited by the appellants. Statements of the deceased were admissible to refute the reputation of his marriage. Cargile v. Wood, 63 Mo. 501. It is competent to show in defense of a common law marriage that the deceased made declarations, either verbal or written, that he was single and unmarried. Imboden v. Trust Co., Ill Mo. App. 220; Berkeley Peerage Case, 4 Camp. 415; Cope’s Admr. v. Pearce, 7 Gill. 247; Craufurd v. Blackburn, 77 Am. Dec. 323, 17 Md. 49. When a man and woman are living together, in apparent matrimony, so they are accepted by the community as husband and wife, they are presumed, in the absence of counter presumptions of proof, not to be violating the due order of society, and breaking the law, but to be in fact married. 1' Bishop, Mar. Div. and Sep., sec. 932; Adair v. Mette, 156 Mo. 512. In this case it was quite to the contrary. Something like twenty of the near neighbors were called as witnesses, and all swore that they understood that they were not married, but on the contrary were living in adultery, so much so that some of them called on Mr. Topper and talked to him about it. Although the law does not admit hearsay evidence in proof of a fact which is susceptible of proof by witnesses who can speak from their own knowledge, yet questions of pedigree embrace not only descent and relationship but the fact of birth and marriage as well. 22 Am. and Eng. Encv. Law (2 Ed.), 640, 645, 647; Williams v. Williams, 46 Wis. 480; Spencer v. Pollock, 17 L. R. A. 850. Neither cohabitation nor reputation of marriage is marriage. Yardley’s Estate, 75 Pa. St. 211; Hunt’s Appeal, 86 Pa. 296; Richard v. Brein, 73 Pa. 140. Mere acknowledgment of the relation of husband and wife made idly or to ward off prosecution or to stifle inquiry or to evade 'criticism is of little or no weight. West v. State, 1 Wis. 186; Schouler on Domestic Relations (5 Ed.), sec. 26; Wolverton v. State, 16 Ohio 173. In establishing- a common law marriage reputation as to cohabitation may be shown but this must be a general reputation of the parties being husband and wife, and a conflict in such repute will not establish a marriage. Ash-ford v. Ins. Co., 80 Mo. App. 638; Cargile v. Wood, 63 Mo. 501; 2 Greenleaf on Evidence (16 Ed.), pp. 526, 527, 528, 529; Stats v. Cooper, 103 Mo. 266; Dysart v. Perrage, 6 L. R. A. 715; Imboden v. Trust Co., Ill Mo. App. 220. What the parties by their actions deny the law will not affirm. Becken’s Appeal, 2 Brewster 202. The relation of cohabitation and reputation of mar.riage must be undisputed at all times and in all places openly admitted by both parties. Terry’s Estate, 58 Minn. 268; Powers v. Chamberry, .35 La. Ann. 630; Arnold v. Cheseborough, 58 Fed. 833; Ashford v. Ins. Co., 80 Mo. App. 638; Yardley’s Estate, 75 Pa. St. 207; McKenna v. McKenna, 180 111. 577.
   GANTT, J.

This is an action brought to' determine the title to certain real estate in Lawrence, Barry and Laclede counties, Missouri, under section 650, Revised Statutes 1899.

The plaintiffs claim title to said real estate: the said Anna, a life estate by way of homestead and dower • as the widow of Ambrose G. Topper, deceased, by virtue of a common law marriage; and the minor, an estate by homestead and in fee simple as the only child and • heir'at law of said Ambrose G. Topper. The defendants are alleged to claim title to said real estate as .heirs at law of said Ambrose G. Topper, deceased, but plaintiffs deny that they are sneh heirs and that they have title, estate or interest whatsoever in said lands.

The petition prays that the court shall ascertain and determine the title and interest of the said parties respectively in and to such real estate. In their answer the defendants admit that Ambrose Gr. Topper died intestate, leaving no bodily heirs, and assert that the defendants are the brothers and sisters of the deceased, the father and mother being dead, and that they are the next of ldn and by virtue of the statutes of this State entitled to inherit said property. Further answering the defendants say that Ambrose Gr. Topper, deceased, was never married to Anna D. Topper, as she now subscribes her name, neither at common law or otherwise; that said pretended marriage on the part of plaintiff to said Ambrose Gr. Topper, deceased, is only a pretense, and only claimed for the purpose of obtaining the property of said Ambrose Gr. Topper, deceased, and further answering they state that they have no knowledge whatever as to the existence of Ambrose Gr. Topper, Jr., and deny that any child was born to Anna D. Topper of which Ambrose Gr. Topper, deceased, was the father. They deny each and every other allegation in the petition.

The cause was tried at the November term, 1902, of the circuit court of Lawrence county, and taken under advisement until March, 1903, when final judgment was rendered for the defendants. A motion for new trial was filed in due time and was overruled and exceptions duly saved and an ¿ppeal taken to this court.

The evidence in substance on the part of the plaintiffs tended to prove that the plaintiff’s, Anna D. Topper’s, maiden name was Hoover;, that at the time of the trial she was forty-four years old; that prior to her alleged marriage to Ambrose G-. Topper she was the widow of one Stringer, and was residing with her brother, Mr. James H. Hoover, near Monett. She testified that her former husband, Stringer, was dead. She had one child before she was ever married and had one child, Ernest Stringer, still living, who was born in 1879; that after Stringer’s death, she made her home with her father until his death on the 13th of December, 1890, and after her father’s death she resided with her mother until September 13,1894, and after her mother’s death with her brother for whom she kept house. She testified that she was first engaged to be married to Ambrose Gr. Topper in April, 1900; that he came to see her every Saturday and Sunday. As to her marriage with Ambrose Gr. Topper, she testified that he and she had been to a picnic at Aurora, and on the road home midway between Aurora and Yerona, he acknowledged her to be his wife and she acknowledged him to be her husband; he said that she was his wife under obligations and wanted to hold marriage relations with her, and at first she objected, but he persisted that she was his wife. She wanted to-have a ceremony before they held marriage relations, and he said it was not necessary; that marriage was simply a contract between a man and a woman, and that she was just as much his wife as she would be if the ceremony was said if they would hold marriage relations, and he insisted and so then she agreed to hold marriage relations with him, and from that time on he acknowledged her as his wife. This was on the night of the 4th of July, 1901. The marriage between Mr. Topper and her was kept secret, and she continued to live with her brother, Mr. Hoover, just as she had prior to the 4th of July, 1901, but it was talked in the neighborhood and they were accused of being married, and she was called Mrs. Topper. On December 9, 1901, she went to live with deceased Topper, on his farm east of Monett. Before moving into the house on the farm, it was necessary that the same be repaired. Topper had used it for a granary to store his wheat and corn. He went to work to have the house repaired; during that time he was boarding, at Mr. J. H. Hoover’s. "When they got ready- to paper the house, he asked her if she could not come down and help Mm paper it, and she agreed to do so. She went to Pierce City and bought the material and then helped Mm and the young man put the paper on the house. Finally when they got ready to move into the house, they moved all of her tMngs from her brother’s down to Ms place and from that time she continued to live with him. She stated that Mr. Topper told her that some of the neighbors were coming to Ms house and they would be asking questions and he told her to tell them that they were married. She .stated that after they moved into the house she insisted that they have a ceremony performed, and he said it was not necessary, he said, “Annie, you are just as much my wife as Katie is old Bill Jones’s wife,” and said, “I will show you,” and he went up stairs and got a book from his trunk and brought it down and read to her that marriage was just a contract for her to agree to be his wife and for him to agree to be her husband. He said that that was all there was of it; that the ceremony was mannish, that it did not amount to anything. She testified that it was true that she was trying to get Topper to have a ceremony performed; that their relations were just the same as if she was Ms wife; she was not satisfied. She was going to hold on to her contract, was going to follow him and go with him just the same as if the ceremony was said; that he was good to her, and held out all the time he would be a man, and was going to carry out all of his obligations. Her son, Ernest Stringer, killed Mr. Topper. She was asked if he did not kill him over this question of Topper refusing to marry her according to law, and she answered, they did talk of having the ceremony performed and Mr. Topper had been out to Mr. Jones’s in the evening, he was awful angry and threatened to kill Ernest. Ernest asked him what he meant by telling Jones he was going to fix him (Ernest), and Mr. Topper said, he meant what he said, and got a shot gun and Ernest got behind her and began to sboot. Ernest insisted upon Mr. Topper procuring a marriage license, and offered to go himself to Mt. Vernon and get it. Mr. Topper said he would attend to his own business. She testified that during her stay at Topper’s residence, she slept with Mr. Topper part of the time and part of the time in another room. She named a number of people who addressed her as Mrs. Topper in the presence of Mr. Topper, and that he made no objections to it. Other witnesses testify that they had said to Mr. Topper that they had heard that he was married and he said, “Ves, he was married.” Others testified that they had been at his house and that he and the plaintiff were living just like man and wife live. One woman, Mrs. Jones, said she talked to him about the relations he bore to Mrs. Stringer,' and he said it was no one’s business the way they were living but their own, and that they were man and wife in the’ sight of God. There was a great deal of talk in the neighborhood about them living together without a marriage ceremony, and the ladies in the neighborhood would not visit her on that account. Other neighbors testified to seeing them riding around the neighborhood in a buggy together. On the part of the defendants various other witnesses testified that Topper said to them that he' was not married to plaintiff. Various other witnesses testified that they were not reputed to be married by the neighbors in the neighborhood.

P. C. Watson testified that he wanted to buy some ground from Topper in Monett and Topper agreed to sell it .to him, whereupon Watson said to him, “It is rumored that you are married, and if you are, we want your wife to come down and sign the deed,” and Topper said, “He was not married and his title would be good.” Other witnesses testified that they were reputed to be married. All or nearly all of these witnesses testified that they understood that to be lawfully married it was necessary to have a license and have the ceremony performed by a justice or a priest.

The testimony was that Ambrose Gr. Topper, Jr., the minor plaintiff in this case, was born March 31, 1902, and Ambrose Gr. Topper, deceased, was killed February 14, 1902. Other facts may be noted in the course of the opinion.

Two propositions are advanced by the plaintiffs to reverse the judgment of the circuit court. The first is that the circuit court erred in admitting on behalf of the defendants, statements and declarations of Ambrose Gr. Topper, to the effect that he was not married to the plaintiff, alleged to have been made in her absence, to various witnesses, on the ground that such declarations were self-serving, and such in their nature as Ambrose Gr. Topper could not have introduced in his own behalf in his lifetime, and did not become competent after his death; and, second, that upon the whole evidence the court erred in rendering judgment in favor of the defendants.

I. The right of the plaintiffs to the lands in suit depends, of course, upon whether there was a valid marriage according to the common law, between plaintiff Anna and Ambrose Gr. Topper, deceased. Upon this issue plaintiffs assumed the affirmative and offered, among other tilings, evidence of the declarations and admissions of Ambrose Gr. Topper that he was married to the plaintiff Anna; that those declarations and admissions were competent there can be no doubt whatever under the long line of adjudications in this country. But the defendants on their part also offered evidence that Ambrose Gr. Topper in his lifetime on various occasions stated that he was not married to the plaintiff Anna, and these statements of the deceased were admitted by the circuit court over the objections and exceptions of the plaintiffs, and it is this ruling of the court which forms the basis of the first assignment of error. This evidence pro and con was directed to the proof of the acknowledgment by Ambrose Gf. Topper that plaintiff Anna was his wife.

In Cargile v. Wood, 63 Mo. l. c. 506, this court, in discussing this point, said: “The evidence adduced by the defendants strongly tends to show that Cargile, after he came to this State, treated Cynthia as his wife by holding her out to the community as such on all occasions ; that he introduced her as his wife, requesting people to visit her, paid her bills, and applied to her in the presence of others such titles as husbands are accustomed to apply to their wives. ... On the other hand, the plaintiffs introduced a strong array of testimony in contradiction to the defendants’ evidence, and which tended to prove that Cargile and Cynthia were never married; that on many occasions they both declared they never had been married, and that Cargile said he never would marry her.” It is true in that case, no objections or exceptions were taken to the introduction of Cargile’s statements that he was never married, and that he would never marry Cynthia.

In the very recent case of Imboden v. Trust Company, 111 Mo. App. l. c. 235, this question arose and was directly in issue, and the Court of Appeals said: “To rebut this evidence [that is, evidence tending to prove declarations of Imboden that they were married] the respondent offered evidence, over the objection of appellant, that Imboden, after the alleged contract of marriage, and not in the presence of appellant, made oral and written declarations that he was single and unmarried. . . . The admission of this testimony is assigned as error. In the Berkeley Peerage Case, 4 Camp. 415, Lord Mansfield said: ‘Prom the necessity. of the thing, the hearsay of the family as to these particular facts (marriage, birth and the like) is not excluded’ if made before the dispute has ariseh. In Cope’s Admr. v. Pearce, 7 Gill 247, it is said: ‘The term “pedigree” embraces not only descent and relationship, hut also the facts of birth, marriage and death, and the times when these events happened,’ and that in case of pedigree, the declarations of the deceased persons and of deceased members of the family are admissible to prove per se not only the issue but the fact of marriage. In Craufurd v. Blackburn, 77 Am. Dec. 323, 17 Md. 49, the plaintiff, to obtain letters of administration on the will of Dr. David Craufurd, offered testimony to show that he was the son of Thos. B. Craufurd, deceased, who was the son of Dr. David Craufurd. The maiden name of the mother of plaintiff was Betsy Taylor. To prove that she was lawfully married to Thos. B. Craufurd, the appellant offered, with other evidence, the declarations of Thos. B. Craufurd, made on several occasions, to the effect that- Betsy Taylor was his wife; and also called his mother to the stand, who testified that she and Thos. B. Craufurd were married by a Catholic priest in the city of Washington, in 1835. To rebut this evidence, the appellee offered the declarations of Thos. B. Craufurd, made in the year 1837, and afterwards, that he was not married to Betsy Taylor. The circuit court admitted this evidence over the objections of the appellant. On appeal, in respect to this character of evidence, the court said: ‘This objection arises from a misapprehension of the rule. Such declarations are not held to be admissible or inadmissible according to the necessity of the particular case; but they are admitted as primary evidence on such subjects by the established rule of law, which, though said to have had its origin in necessity, is universal in its application. Nor do such declarations stand upon the footing of secondary evidence, to be excluded where a witness can be had- who speaks upon the subject from his own knowledge. “Hearsay evidence” is of course inadmissible, if the person making the declaration is alive and can be called. But the declarations of a deceased mother, as to the time of the birth of her son, are admissible, though the father is living and not called.’ The ruling in this case was followed in Jones v. Jones, 36 Md. 457, and Barnum v. Barnum, 42 Md. 305. In Jewell v. Jewell, 42 U. S. 219, it was held that the declarations of a deceased member of the family that the parents were never married were admissible in evidence, and that an advertisement in a commercial paper, at the place of residence of the parties, inserted immediately after the separation, was a part of the res gestae and admissible in evidence to rebut the evidence of marriage. The Jewell case was followed in Fulkerson v. Holmes, 117 U. S. l. c. 397.” In view of the foregoing authorities, the Court of Appeals said: “The declarations of Imboden, both written and oral, made after the alleged marriage, 'that he was single and unmarried, were admissible to rebut the testimony offered by appellant to prove the marriage. ”

In Greenawalt v. McEnelley, 85 Pa. St. 352, evidence as to the admission of the deceased husband of the marriage was admitted, and also evidence to the contrary. On this point the court charged the jury as follows: “Coming then to the question of admissions of the parties, they may be looked upon either as in corroboration or negation of the allegation made by Mrs. Gilson as to the fact of the marriage. It is testified by a number of witnesses that Benjamin Guffey at various times made admissions to different witnesses that he was married to this lady; and there are also in evidence admissions of a contrary character, or rather denials by him, of the fact that he was married. The admission of Benjamin Guffey of the fact of his marriage would be against his interest, and if once established to have been repeatedly made, under circumstances evincing their truth, and not mere casual or jocular expressions, they would be of great weight. Denials, however, by him, of his marriage are declarations in his own favor, and are entitled to little weight to contradict his admissions in opposition to his interest. Therefore, under these suggestions, you will look at the question of his admissions, which, as we have stated, are against his interest, and are entitled to great weight, and also take into consideration his denials of the fact of his marriage, which, as we have stated, are declarations in his own favor, and are entitled to little weight in opposition to admissions against his interest.” This declaration of law was approved by the Supreme Court. It is evident from the whole case that the court regarded the denials of the deceased of his marriage as competent, but submitted their weight to the jury for their consideration.

We are cited to numerous cases by counsel for the plaintiffs to establish the general proposition that declarations against interest are admissible, but declarations in support of interest are not admissible, because self-serving. As to this general proposition, there can be no doubt, under the decisions of this court, but the question here is one of pedigree, which we have seen by numerous decisions, is taken out of this general rule. We are cited by counsel to Hill v. Hill’s Admr., 32 Pa. St. 511, in which the court excluded declarations of the decedent to disprove his marriage with the plaintiff, but a reading of that case will indicate that the court based its ruling upon the ground that there had been no attempt to prove the marriage by reputation, and the testimony was not, therefore, competent to meet anything which had been proved by the plaintiff. There is no discussion whatever of the principle of law involved on this point, but any way it is clear that the Supreme Court of Pennsylvania did not regard that case as in conflict with its subsequent decision in Greenawalt v. McEnelley, 85 Pa. St. 352, nor do we regard the decisions in Hoffmann v. Hoffmann’s Exr., 126 Mo. l. c. 496, and Wood v. Carpenter, 166 Mo. l. c. 485, as applicable to the question now under consideration.

In our opinion the evidence as to the denials of Ambrose Gr. Topper to his having been married to ‘plaintiff Anna, was competent evidence. We think the decision of the St. Louis Court of Appeals on this question, in Imboden v. Trust Co., correctly " declares the law.

II. But it is insisted that the judgment of the circuit court is not supported by the evidence.

In Cargile v. Wood, 63 Mo. l. c. 512, the law in regard to proof of marriage at common law when questions of the legitimacy of children and the devolution of property right are involved, was fully considered by this court. In that case Wagner, J., speaking for this court, said: “Where parties have cohabited together and held themselves out as man and wife, and there are circumstances from which a present contract may be inferred, the law, out of charity and in favor of innocence and good morals, will presume matrimony. The law in general presumes against vice and immorality, and on this ground holds acknowledgment, cohabitation and reputation presumptive evidence of marriage. Mere cohabitation is not usually considered sufficient.”

Bishop lays down the doctrine that “cohabitation, and the reputation of being husband and wife, are usually considered together in questions concerning the proof of marriage; the one being, in a certain sense, the shadow of the other. Some of the authorities favor the idea that reputation of itself may be received as sufficient proof prima-facie, but it must be uniform and general; if there is a conflict in the repute, it will not establish the marriage. On the other hand, its sufficiency in any case has been denied, unless there be accompanying proof of cohabitation” [1 Bishop, Marriage and Divorce (5 Ed.), sec. 438.]

“Cohabitation and reputation are at best only presumptive proofs, and when one of these foundations is withdrawn, what remains is too weak to build a presumption on. There is good sense in the Scotch law, by which cohabitation alone is considered insufficient, and which requires in addition ‘habit and repute,’ because, it is said, the parties may eat, live and sleep together, as mistress and keeper, without any intention of entering into marriage. ’ ’

It is well established in this State that a marriage without observing the statutory regulations, if made according to the common law, is a valid marriage, and that by the common law, if the contract be made per verba de presentí it is sufficient evidence of a marriage, or if it be made per verba de futuro cum copula, the cohabitation is presumed to be on the faith of the marriage promise. That is, however, merely a rule of evidence, and it is always competent, in such cases, to show by proof that the facts are otherwise. Under our law marriage is a civil contract, by which a man and a woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge towards each other the duties imposed by law upon such relation. Each must be capable of assenting and must, in" fact, consent, to form this new relation. When the consent to marry is manifested by words de presentí, a present assumption of the marriage status is necessary. [State v. Bittick, 103 Mo. l. c. 191; State v. Cooper, 103 Mo. l. c. 271; Dyer v. Brannock, 66 Mo. 391; Cartwright v. McGown, 121 Ill. 388.]

In McKenna v. McKenna, 180 Ill. 577, the question of the sufficiency of a common law marriage was the point in decision. In that case the action was for separate maintenance by Julia McKenna against James McKenna, on their claim of an alleged common law marriage contract. The plaintiff testified that the defendant came to her room, and she told him he must leave the room, and he said he would not, she said he could not stay there and he said he would, she said he could not stay there and he said, “Well, we are much as man and wife now; I take you as man and wife before G-od and man,” and he lifted his hands, and she said, if he was to stay in that manner, certainly she would let him stay, and he stayed all night. Speaking of this, the Supreme Court of Illinois said: “Here there was no assent on her part. . . . The words here spoken are not equivalent to a promise on her part to become his wife. She merely ‘let him stay.’ The words are no stronger than those used in Hantz v. Sealy, 6 Binn. 405. In that case the plaintiff and the defendant had long lived in adulterous intercourse although they considered themselves lawfully married. In faet, they had entered into a marriage contract, which was void, because the defendant had a former wife living from whom he had been separated by consent, but not legally. After a legal divorce was procured they were advised by their lawyer to celebrate a new marriage. The defendant said, ‘I take you (the plaintiff) for my wife, ’ and the plaintiff, being told if she would say the same thing the marriage would be complete, answered, ‘ To be sure; he is my husband good enough. ’ The court held that these words of the woman did not constitute a present contract, but alluded to the past contract, which she always asserted to be a legal marriage. Nor do the facts as established by the evidence bring the case within the rule declared in Elzas v. Elzas, 171 Ill. 635. There the common law marriage was sustained, but the man accepted the woman as his wife and she then and there accepted him as her husband.”

Now when we compare the plaintiff’s evidence as to what occurred when she claims the marriage between her and Ambrose Gr. Topper was entered into, it will be seen that there was no more a mutual agreement between the parties in the present tense than in either of the above-mentioned cases. She says that on the road home between Aurora and Verona, “He said that she was his wife under obligations; and wanted to hold marriage relations with her, and at first she objected, but he persisted she was his wife. She wanted to have a ceremony before they held marriage relations, and he said it was not necessary; that marriage was simply a contract between a man and a woman and that she was just as much his wife as she would be if the ceremony was said if they should hold marriage relations, and he insisted, and then she agreed to hold marriage relations with him, and from that time on he acknowledged her as his wife. ’ ’ It will be seen that as in McKenna v. Mc-Kenna, she does not testify to any promise on her part to become his wife, but simply to have marriage relations with him upon his assertion that she was his wife. There was abundant evidence on her part that she still regarded a ceremony as necessary, and that because of his refusal to obtain a license and have a marriage performed, a difficulty arose between him and the son of the plaintiff, Ernest- Stringer, in which the latter shot and killed Ambrose G. Topper. Now the proof as to the assumption of the marriage status was that the alleged marriage was kept secret. According to plaintiff Anna’s testimony, it was entered into on the 4th of July, 1901, but they never openly began to live together until the 9th of December, 1901. On the question of the reputation that the plaintiff Anna and Ambrose G. Topper was married, we think the evidence strongly preponderates that they were not regarded in their neighborhood as lawfully married. The ladies in that neighborhood refused to visit her, and there was so much adverse criticism of their conduct that one of the neighbors remonstrated with Topper and insisted that he have a marriage ceremony performed. Clearly the reputation in this case was wholly insufficient under the rule laid down by Bishop and approved by this court in Cargile v. Wood, to-wit, that “if there is a conflict in the repute, it will not establish the marriage.” The learned trial court had all these facts before it to determine whether there was a valid common law marriage between tbe plaintiff Anna and tbe. deceased Topper, and he finds there was none. In determining whether he erred in so finding, it must be borne in mind that he had the witnesses before him and could observe their manner of testifying and had exceptional opportunity to weigh their evidence in the light of the requirements of the law as to the essentials of a valid common law marriage. It must be remembered that the only testimony to the contract itself was that of the plaintiff Anna, and the court as a trier of the facts; may have discredited her evidence, at least, in part, or he may have reached the conclusion from her own statement of what occurred on the night of the 4th of July, 1901, that there was no mutual agreement in the present tense between her and the deceased to be man and wife, or that the cohabitation between them was upon the faith of any such agreement. Certainly there was no such assumption of the marriage status after that night for over four months that would indicate that these parties regarded themselves as man and wife from and after that night. There was no such open and continued cohabitation and holding themselves out to the world as man and wife, as usually characterize the marriage relation. When the whole evidence in the case is considered together, the age of the parties, the fact that there was no legal impediment to a lawful marriage, if they so desired, and the ease with which a license could have been obtained, and the ceremony performed, and the insistence on the part of the plaintiff Anna that a ceremony should be performed, we do not think we would be justified in holding that the circuit court was not authorized to find, as a matter of fact, that the deceased, Ambrose Gr. Topper, never entered into a marriage contract with the plaintiff Anna, notwithstanding the cohabitation, which unquestionably was maintained by them for the two months during which she lived in his house.

For these reasons the judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.