In re Estate of Ruffino

Citations

• 116 Cal. 304
• 48 P. 127
• 1897 Cal. LEXIS 544

Syllabus

<p>Contest of Will—Marriage of Proponent with Decedent—Contract and Assumption of Marital Relations—Improper Instructions— Formal Declaration of Marriage.—Upon a contest of a will, where issue was joined as to the marriage of the proponent of the will with the testator, and the testimony showed a written contract of marriage between them, evidencing consent to marriage, but not intended to comply with section 76 of the Civil Code, which provides for a formal written declaration of marriage before witnesses, and such written consent was subsequently followed by the open and public assumption of marital rights, duties, and obligations, section 76 of the Civil Code has no application to the case, nor is the declaration therein provided for requisite or material to the validity of the marriage; and an instruction based on that section, which would lead the jury to understand that where there is no solemnization such declaration must be made or the marriage is void, is misleading and erroneous.</p> <p>Id.—Delay in Assumption of Marital Relations—Evidence of Present Consent—Presumption of Matrimonial Intercourse—Erroneous Instructions.—Where there was evidence tending to prove and the jury found that there had been no unlawful relation between the parties prior to the time .when they commenced living together as husband and wife, and it appeared that they always represented that they were married, and were universally so regarded by their acquaintances, their intercourse must be presumed to be matrimonial, notwithstanding a delay of eight months between the written contract of marriage and the assumption of marital relations; and such assumption, when designed to consummate the previous contract at any time thereafter, completes a valid marriage, and proves a present consent thereto which need not be in writing, and of which the former written contract com' pletes the evidence; and it is error to instruct the jury so as to lead them to understand that the assumption of ma