shadow of probability that the appellee had, at any time, heard of the former marriage.

If presumptions might arise, that this fact was ascertained after the arrival of the first wife in Texas, yet this wife was married to another man before her emigration to this country. As innocence is always presumed, it is not to be supposed that the first wife remarried, without having obtained a divorce. If the appellee ever heard, then, of the existence of the first wife, it was only as one from whom her husband had been divorced, and between whom the marriage had been utterly dissolved. Had it been ever proven that the appellee had received certain information of the existence of the former wife, yet, after her marriage, the fact, thus qualified, would not affect her claim or disturb her rights as a lawful wife of the deceased. In the article quoted from the dictionary, it is laid down that putative may be converted into true matrimony, by the impediment ceasing to exist, and the instance given in illustration of the rule, would be identical with this case, had the former wife died instead of being divorced, as is to be presumed, from her remarriage; but the rule is as applicable in the one case as in the other. The former marriage is as completely dissolved (at least it is so by the laws of this country) by divorce, as by death, and the putative is converted into a real marriage, by the removal of the disability, however that may be effected. According to the instance given, the second wife, on the death of the first, has the privilege of remaining with her husband as his lawful wife, or of separating and marrying another. This privilege should be accorded, as well where the first marriage is dissolved by divorce, as by death.

But presumptions can not be admitted, to any extent, to impeach the good faith of the appellee. If, by knowlege of the former marriage, she is to be divested of her rights and exposed to humiliation, this marriage must be established on clear and indisputable proof, and not on presumptions susceptible of explanation, if there were any arising out of the facts in the case; and we have only alluded to the doctrine of presumptions, to show their inadmissibility in a controversy of a similar nature, and not as necessary to the decision of the present case. There are here no presumptions, that the ignorance of the appellee was ever enlightened, that the darkness enveloping her husband's conduct, was ever dispersed-or, that her mind was crossed with a shadow of suspicion that she was not in law, morals, and religion, the lawful wife of the deceased; she is innocent, then, of

any offense against morality or against the rights of the former wife.

She has been subjected to all the duties and obligations, and is entitled to all the rights of a bona fide wife. Her ignorance and her innocence continued through the life of her husband. She was, in life, his lawful wife, and if terms are used in their ordinary or legal import, she must, after death, be his surviving wife. The appellant's counsel has contended, in a very ingenious argument, that though she might, under the law existing at the celebration of the marriage, be entitled to a portion of the property, yet by the laws in force at the time of his death she could not be regarded as the surviving wife of the deceased. That the order of administration is an arbitrary, legal regulation, and that the surviving wife, to whom administration is granted, was only one who, in contemplation of the common law, was the lawful wife of the deceased. The extreme pressure under which our opinions are made up, will prevent any full discussion of these and other points raised in the argument, even of such as may be essential to the decision; we will, however, briefly remark, that the rules of law deduced from Spanish commentators by the appellant, are modified by other rules and principles, as laid down in the authorities to which we have referred. And, that although the common law may not, as is contended, without some statutory modification, recognize the validity of a second marriage (the first wife living) under any circumstances, or the rights of the ignorant partner or of the offspring, however innocent-yet this marriage, being valid at the time of its solemnization, continued so under the laws of this country as long as the appellee was not certainly informed of the first marriage; and after the dissolution of this by divorce as is to be presumed, the second marriage by the removal of all impediment, became a true marriage and was relieved from all taint of illegality. The marital rights of persons in this state, married before the introduction of the common law, are to be regulated by the law as it aforetime was.

If, then, by the former law, the appellee is and was regarded, up to the death of the deceased, as his lawful and bona fide wife, it would surely be no misnomer to style her, after his death, his surviving wife. It is true, that the order of granting letters of administration, as now regulated, was established since the common law was put in force; but, when application is made by a wife for authority to administer the succession of a deceased husband, and her status is disputed, we must have recourse,

AM. DEO. VOL. XLVI-9

not to the common law alone, but to all the laws regulating her condition, to ascertain whether she is entitled, or not, in the capacity in which she sets up her claim I by those laws, she is regarded, during the life of the deceased, as his bona fide wife, and as such entitled to all the rights of a lawful wife, she must, if she survives him, be regarded as his surviving wife, and be invested with all the rights devolving on her in that capacity, one of which is the authority, first in order, to administer on the estate of the deceased husband. She has a larger interest in the property than any other person. The matrimonial connection had continued for fifteen years, and she is in her own right, entitled to one half of the balance of the community property remaining after the payment of the debts, if there be any, by which it is incumbered. She is the natural guardian of her children, and there is every consideration to give force to her claim for administration, and to secure a faithful and careful discharge of the duties of the trust.

Other questions of importance, connected with the general principles regulating conflicting claims between foreign and domestic marriages, and the protection which would be afforded rights accruing in good faith under our own laws, readily suggest themselves to the mind, but it is impossible, under the circumstances, to give them any consideration.

It is ordered, adjudged, and decreed, that the judgment of the court below be affirmed.

MARRIAGE DURING CONTINUANCE OF PRIOR VALID MARRIAGE, EFFECTS OF. By the common law, if a person, having living a husband or wife, marry another person, such second marriage is absolutely null and void: 2 Kent's Com. 79; 1 Bish. on Mar. and Div. 299; Cro. Eliz. 858; Pride v. Earl of Bath, 1 Salk. 120; 1 Roll. Abr. 340, pl. 2, 357, pl. 40, 360 F; Fenton v. Reed, 4 Johns. 52; S. C., 4 Am. Dec. 244; Williamson v. Parisien, 1 Johns. Ch. 389; Janes v. Janes, 5 Blackf. 141; Martin v. Martin, 22 Ala. 86; Summerlin v. Livingston, 15 La. Ann. 519; Harrison v. Lincoln, 48 Me. 205; Appleton v. Warner, 51 Barb. 270; Kenley v. Kenley, 2 Yeates (Pa.), 207; Heffner v. Heffner, 23 Pa. St. 104; Sellars v. Davis, 4 Yerg. 503; Miles v. Chilton, 1 Robertson, 684; Bird v. Bird, 1 Lee, 621; Searle v. Price, 2 Hag. Con. 187; S. C., 4 Eng. Ecc. 524; Bayard v. Morphew, 2 Phillim. 321; Young v. Naylor, 1 Hill's Eq. 383; Smith v. Smith, 1 Tex. 621 (principal case); Ganer v. Lanesborough, Peake, 17; Zule v. Zule, Saxton, 96; note to Gathings v. Williams, 44 Am. Dec. 54, and cases there cited. And no length of time or absence, and nothing but death, or the decree of a court having jurisdiction of the case, can, in the absence of statutory enactment, dissolve the marriage tie: Fenton v. Reed, supra; 1 Roll. Abr., supra; Williamson v. Parisien, supra. Since the marriage is thus void, the incidents which attend and follow a valid marriage are not acquired by the parties, such as dower, curtesy, legitimacy of children, etc. Thus in an action of assumpsit by a woman against

the administrators of her reputed husband, she alleged that the latter had represented himself to her as a widower, had induced her to marry him, that she did accordingly enter into a ceremony of marriage with him, and lived with him until his death, performing all the duties of a wife, but that in fact he had a former wife living, whereby the plaintiff was barred of her dower; it was held that she had a good cause of action for work and labor done under this fraud of the deceased, and that it survived against his executors: Higgins v. Breen, 9 Mo. 497; and not only may such reputed wife recover for her services, but also for the use of her furniture, hire of her negroes, moneys borrowed by him, and even debts of his paid by her since his death: Fox v. Dawson's Curator, 8 Mart. (La.) 94. So, also, it has been held that she may, upon bill in equity, compel him to account for the rents and profits of the property he took from her under this supposed marriage, and to redeliver the property to her with its proceeds, retaining for himself the benefits of his improvements: Young v. Naylor, 1 Hill's Eq. 383. And if any personal property is given to her at or during the existence of such supposed marriage and is sold by the husband with her assent, she being an infant, the sale would convey no title, and she could afterward sue for and recover the same: Sellars v. Davis, 4 Yerg. 503. In that case the court say: "It is alleged that in thus consenting to the sale, she was guilty of a fraud on Sellars, the purchaser. This can not be, seeing she supposed Mitchel had a lawful right to make the sale, and that she had no right to prevent it. Her conduct was perfectly fair, taking into consideration the want of knowledge under the influence of which she acted. But it is said she confirmed the sale afterwards. The answer is, she was still an infant; and as she could make no contract binding on her, nothing she could say in affirmance of one already made could bind her. This suit is the most conclusive evidence of her intention to disaffirm the sale. It is said the suit should have been in the name of Davis, her father. Such suit could not have been sustained, because he certainly parted with the property [a slave]. If he gave it to Eliza Ann, it belonged as much to her as if she had never thought of a marriage:" Id. 506. That the pretended second wife has no dower, see Smart v. Whaley, 6 Smed. & M. 308; Higgins v. Breen, 9 Mo. 497; Williams v. Williams, 46 Wis. 464. The last case was an action for dower, and there was evidence from which the jury might have found that when the marriage ceremony was solemnized between plaintiff and the deceased, plaintiff was the wife of another man, though such disability was removed some years before the death of deceased, and that, from the time of such ceremony until such death, the alleged husband and plaintiff cohabited together and publicly acknowledged each other as husband and wife. It was held error to refuse instructions asked by defendant to the effect that if the jury found that plaintiff, at the time of such ceremony, was the wife of another man, and that the alleged husband spoke of and introduced her as his wife, and cohabited with her as such, because of such ceremony or pretended marriage, and not because of any actual marriage contracted after the disability was removed, then she was not entitled to dower. Where a man conceals his first marriage, in an action by the wife to annul the marriage on the ground of his prior marriage and abandonment of her, if the woman is of good character and blameless in the affair, it has been held in Kentucky that she is entitled to alimony: Strode v. Strode, 3 Bush, 227.

STATUTORY MODIFICATIONS.-The above rule of the common law allowing none of the incidents of a true marriage to follow the ceremony of a marriage entered into during the continuance of the first marriage, was early found to work much injustice upon the innocent party to such marriage, and more

especially upon the innocent offspring of such pretended marriage. To remedy these hardships many statutes have been passed both in England and in the different American states. We will briefly notice a few of the most important ones. And first of those statutes that by far are the most effective and important, since they tend to prevent the marriage itself, rather than alleviate the hardships flowing from it. The statute of 1 Jac. I., c. 11, enacted that if any person being married, do afterwards marry again, the former husband or wife being alive, it is felony, but within the benefit of clergy. That statute makes five exceptions, in which it is no felony. The two most important of which are: 1. Where either party hath been continually absent abroad for seven years, whether the party in England has knowledge of the other being alive or not; and, 2. Where either of the parties has been absent from the other seven years within the kingdom, and the remaining party has had no knowledge of the other being alive within that time: 4 Bl. Com. 164. This statute has been the model for criminal legislation on the subject both in England and in the American states, and many of its defects have been remedied, especially that allowing a second marriage after a seven years' absence abroad where the party has had knowledge that the absent one was alive: Shelford on Mar. and Div. 226; 1 Bish. on Mar. and Div. 297. In Maryland the statute requires a seven years' absence before the other can marry, and under that statute it has been held that the deed of a married woman, abandoned by her husband, of property acquired by her as a sole trader after the abandonment, was void: Rhea v. Rhenner, 1 Pet. 108.

Another class of statutes is that making the issue of marriages null in law legitmate. The New York statute provides "that if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the life-time of such husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority:" 2 R. S. 139. And California has substantially the same law: Cal. Civil Code, sec. 61. Under the above section of the New York statutes it has been held that as the statute was remedial in its nature, it might properly be applied retrospectively: Brower v. Brower, 1 Abb. App. (N. Y.) 214. In Spicer v. Spicer, 16 Abb. Pr. (N. S.) 112, it was held that the statute did not make the marriage valid for any other purpose concerning property, than that of preserving the inheritance of the offspring, from the competent parent, and that a wife thus marrying was not entitled to dower in the property of her second husband. But in White v. Lawe, 1 Redf. (N. Y.) 376, it was held that as the statute only made the second marriage voidable, and not absolutely void, and that until declared void by the decree of a court of competent jurisdiction it remained good and legal for all purposes, and that either party surviving, the other has a prior right to letters of administration It can be declared void only on the application of one of the parties to it, during the life-time of the other, and can not be declared void collaterally, after the death of the first husband, in actions instituted by creditors: Cropsey v. McKinney, 30 Barb. 47.

For the protection of the innocent children, many of the states in their statutes of descents and distributions have the clause providing that "the issue of all marriages deemed null in law shall be legitimate:" Dyer v.

Brannock, 66 Mo. 391; Lincecum v. Lincecum, 1 Id. 441; Graham v. Bennet, 2 Cal. 503; Civ. Code of Cal., sec. 1387. In Dyer v. Brannock, supra, it was held that the child of a second marriage, during the continuance of the first, would inherit and transmit by descent the same as if born of a lawful mar