8. Burden of proof-Continued.

such prior marriage the burden of securing the necessary evidence is upon the Government, as held in the case of the widow of Ami Kimball, No. 586051, decided April 4, 1896, and the action of rejection is reversed in order that the claim may be specially investigated. America Hooker (Asst. Sec. Reynolds), 8 P. D., 210.

9. Presumptions of, from cohabitation and repute.

Under the appropriation act of May 7, 1846, which requires such proof of marriage in pension cases as would be sufficient to establish marriage "in civil personal actions in a court of justice," general reputation and cohabitation are sufficient prima facie, but may be rebutted, and when the date is material. the burden of proving it is on the claimant. Atty. Gen. Mason, 4 Op., 497.

There being no record or other direct evidence of remarriage, yet the admissions of the widow of soldier that she lived with second party as his wife for a period of twenty years, being known by his name and recognized as his wife by all who knew her, including her own children by the soldier: Held, That she is estopped from drawing pension as widow of soldier. Charles A. Banks (Sec. Schurz), 7 P. D. (o. s.), 83.

Where claimant, more than seven years after the departure of her first husband, remarried and lived with her second husband until his death, twenty years thereafter, it is held that the validity of the second marriage should be presumed, claimant having made affidavit to the effect that her first husband had died during the cholera epidemic prior to her remarriage; she having lived with and cohabited with her second husband for many years without any question as to the validity of their assumed relations as husband and wife; and there being nothing in the case to raise a suspicion of its validity. Sarah Gorby (Asst. Sec. Bussey), 4 P. D., 298.

Soldier and claimant were married in Ohio in 1873, he then having a wife living and undivorced, and claimant also a hus band then living and undivorced. Soldier and his former wife were divorced in 1874. Claimant's former husband abandoned her in 1867 and she heard no more of him until sometime after 1875. She heard of his death in that year. Soldier and claimant lived and cohabited together as husband and wife and were recognized as such from the date of their marriage until his death in 1887: Held, That under the facts shown a legal marriage between the soldier and claimant since the removal of the impediments will be presumed. Citing and distinguishing Thankful Morse, 1 P. D., 56. Elizabeth Felber (Asst. Sec. Bussey) 4 P. D., 329.

10. In Arkansas.

See SUBTITLE 33.

11. In the District of Columbia.

On reconsideration of decision of November 7, 1887 (1 P. D., 324), it is held that evidence, in this case, of cohabitation, recognition, and reputation shows a common-law marriage, which is held to be valid under the laws in force in the District of Columbia, where the parties resided, as said laws, although prescribing formalities in solemnization, do not expressly prohibit such marriages or declare them invalid. Citing Meister r. Moore, 96 U. S., 76; Maryland v. Baldwin, 112 U. S., 490, overruling the former decision. Fanny Curtis, colored (Asst. Sec. Hawkins), 2 P. D., 159.

See also SUBTITLE 29.

12. In Illinois.

Under the laws of Illinois a marriage contracted without observing the statute requirements, if made according to the common law, is valid. (Post v. Post, 70 Ill., 484; Hebblethwaite v. Hepworth, 98 Ill, 126.) Mary Von Horn (Sec. Teller), 9 P. D. (0. s.), 281.

The claimant and soldier were legally married in 1846 in Illinois, in which State she obtained a divorce April 10, 1867. Before the decree was obtained they jointly deeded the homestead to a third party, who, the day after the divorce was obtained, deeded the same to the claimant, this being under a stipulation in order to secure the homestead to her in her own right. It was also stipulated that the soldier should occupy the homestead with the applicant and their children as long as he lived; that he was to eat at the same table, assist in the support of the family, and the family should do his washing. This agreement was faithfully carried out, he continuing to live in said home, but sleeping in a room away from the homestead, until the day of his death, and was buried from the house. It also appeared that they were recognized by their friends, neighbors, and acquaintances as husband and wife up to the time of his death: Held, That on above facts no marriage was contracted subsequent to said divorce, and the claimant is not the soldier's widow. Ibid.

Claimant married the soldier about eighteen months after her first husband had abandoned her, and from whom she was not divorced: Held, That under the laws of Illinois, in which State she resided, the marriage to the soldier was void, and no marriage could be presumed from their subsequent cohabitation as husband and wife, as such cohabitation was illicit in its inception, and the soldier never knew of her former marriage. Quoting in full Cartwright et al. v. McGown, 121 Ill., 388. Mary B. McCollum (Asst. Sec. Bussey), 6 P. D., 93.

13. In Indiana.

Claimant was married to the soldier in 1859 by a ceremony, and they lived together in the relation of husband and wife in the State of Indiana from that time until soldier's death in 1892, and twelve children were the issue of said marriage. At the date of this marriage the soldier had a prior wife living, who procured a divorce from him in the State of Illinois in 1863, all of which facts were unknown to claimant prior to soldier's death. It is held that under the laws of the State of Indiana while the marriage in 1859 was void, a valid common-law marriage arose between claimant and soldier after the granting of a decree of divorce in 1863, the acts of the parties after the impediment was removed raising the presumption of mutual consent, which the supreme court of Indiana holds is the essential factor of a perfect common-law marriage in that State. (Teter v. Teter, 101 Ind., 129; Boulden v. McIntire, 119 Ind., 574; Castor v. Davis et al., 126 Ind., 46.) Louisa J. Doan (Asst. Sec. Reynolds), 8 P. D., —.

14. In Kentucky.

The law of marriage, for pensionable purposes, of such colored and Indian soldiers as enlisted prior to March 3, 1873, is found in section 4705, Revised Statutes. Slave marriages could only be ratified and legalized after emancipation in the State of Kentucky by compliance with the act of February 14, 1866, of that State, and appellant and the man with whom she had lived as wife during slavery in Kentucky having failed to ratify and legalize their slave marriage after emancipation by complying with the requirements of said act, such slave marriage was void under the laws of Kentucky, and created no legal impediment to her subsequent marriage to the soldier of that State. This holding is not in conflict with the decision of the Department in case of Maria Myers, 4 P. D., 398. Nannie Roach, colored (Asst. Sec. Reynolds), 7 P. D., 80.

15. In Maryland.

The law of Maryland requires a formal ceremony, performed by a person authorized by law to solemnize marriages, to constitute a legal marriage. George and Albert Koler (Asst. Sec. Bussey), 5 P. D., 99.

The laws of Maryland do not recognize marriages under common-law rules. (Dennison r. Dennison, 35 Md., 361.) Lettie Hawkins, colored (Asst. Sec. Reynolds), 8 P. D., 22.

16. In Michigan.

See SUBTITLES 1, 34, 35.

17. In Mississippi.

A common-law marriage is valid in Mississippi. Patsey Clark, colored (Asst. Sec. Bussey), 4 P. D., 134.

The constitution of Mississippi, which provides "that all persons who have not been married, but are living together and cohabiting as man and wife, shall be taken and held, for all purposes in law, as married," was not intended to force a matrimonial status upon those who had no desire for matrimony. Ann Buie, colored (Asst. Sec. Reynolds), 7 P. D., 122.

18. Colored persons in Mississippi.

Marriages of slaves were not recognized by any law of the State of Mississippi (Rundle v. Pegram, 49 Miss., 751), nor by the general law of African slavery (Hall v. U. S., 2 Otto, 27); but marriages of slaves who cohabited after emancipation became valid by such cohabitation (Girard v. Lewis, 6 Martin, La., 559). As this claimant and the soldier did not cohabit subsequent to January 1, 1863, the date of the President's proclamation abolishing slavery in Mississippi, she can not be regarded as his widow. Philis Porterfield (Sec. Kirkwood),

9 P. D. (o. s.), 10.

See also SUBTITLE 29.

19. In Nebraska.

See SUBTITLE 29.

20. In New York.

In New York, both during the Revolutionary war and to the present time, a contract of marriage entered into by parties capable of contracting, in the presence of competent witnesses, is as valid, to constitute a marriage in law, as if made in facie ecclesiæ or in the presence of a civil magistrate. Atty. Gen. Butler, 3 Op., 287.

Claimant married the soldier in 1865 or 1866, in the State of New York, and lived with him as his wife in that State to the time of his death in 1893. One Sarah Butler, who is now the wife of one Benham, testified that she was married to said soldier ten years before the war by a Baptist minister, but that just prior to her marriage to Benham in 1864 she procured a divorce from said soldier through an attorney in New York City, but that she could not find the decree. No record of such divorce has been found: Held, That as the evidence of previous marriage rests on the same testimony as the evidence of divorce, under the circumstances, and the decisions of the courts of New York and the Supreme Court of the United States, claimant's marriage to soldier may, as the case now

20. In New York-Continued.

stands, be held valid; but as the case appears to be suscepti ble of further proof, the same is reopened for further special examination. Lodiska C. Hyer (Asst. Sec. Reynolds), 8 P. D.,

298.

See also SUBTITLE 31.

21. In North Carolina.

See SUBTITLE 29.

22. In Ohio.

Common-law marriages are valid in the State of Ohio. Elizabeth Felber (Asst. Sec. Bussey), 4 P. D., 329.

23. In Pennsylvania.

Cohabitation and public acknowledgment as husband and wife is deemed sufficient, under the laws of Pennsylvania, to constitute a legal marriage. It is held that claimant's cohabitation as wife of one Shields, and their open acknowledg ment on joining church, of each other as husband and wife, and subsequent recognition as such, bring the case within the statute, showing marriage. Martha J. Griffin (Sec. Chandler), 3 P. D. (0. s.), 82.

In Pennsylvania marriage is a civil contract to the validity of which the consent of the parties, able to contract, is all that is required; but when two persons marry while one of them has a husband or wife living and not divorced, such marriage is void. And their continued cohabitation after the removal of the impediment to their legal marriage, without proof of a subsequent actual marriage, is not sufficient to raise the presumption of a marriage after the removal of such impediment. Sarah C. Hayden (Asst. Sec. Reynolds), 8 P. D., -.

See also SUBTITLE 38.

24. In Tennessee.

The soldier, on account of whose death appellant claims pension, having had ample opportunity to know, or to ascertain upon slight inquiry, that his first wife was living when he married appellant is presumed to have known such fact; and his said marriage to appellant was not valid under section. 3293 of the code of Tennessee. Mary F. Barker (Asst. Sec. Reynolds), 8 P. D., 48.

25. In Utah.

A marriage at common law is valid in the Territory of Utah. Harriet Strong (Asst. Sec. Bussey), 6 P. D., 90.