McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
It will be expedient and advantageous first to state concisely the acknowledged facts of basic relevancy to the paramount issue in the present case.
By a warranty deed dated April 1, 1943, a parcel of real estate situate in the Township of Berlin, Camden County, New Jersey, was conveyed to "Samuel Pontani and Adelaide Pontani of the City of Philadelphia, County of Philadelphia and State of Pennsylvania (husband and wife)." The grantee, Samuel Pontani, died intestate on November 5, 1948, a resident of the Township of Berlin, New Jersey, having retained during his life his interest and estate in the premises described in the deed. The plaintiffs Vincent Pontani and Rita Jordan, the son and daughter of the decedent, are his surviving heirs at law. They are not the issue of the grantee Adelaide Pontani.
The plaintiffs instituted the present action on June 16, 1950, in which they alleged that they are tenants in common of the premises and as heirs they are collectively entitled to an undivided one-half interest therein. They sought partition and an accounting. The defendant denied the existence of the plaintiffs' alleged interest and by way of counterclaim solicited a judgment confirming her sole ownership as the surviving tenant of an estate by the entirety.
The grantees designated in the deed as husband and wife had never been united in wedlock by any ceremonial marriage. Whether the matrimonial relationship was originated by a common-law marriage was the supremely controversial issue of the case.
It may be incidentally recalled that a common-law marriage contracted in this State on or after December 1, 1939, has no validity. R.S. 37:1-10. It was the insistence of the defendant in the present action that the compact of marriage
between the decedent and herself was made on June 30, 1940, in the City of Philadelphia, at which time both of them were residents of that city. Its consummation and its validity were accordingly considered to have been governed by the then existing law of the State of Pennsylvania.
Ordinarily, the validity of a marriage is determined by the lex loci contractus , and whenever the common or statute law of any state, territory or other jurisdiction of the United States is pleaded in an action in any court of this State, the court shall take judicial notice of the law of that jurisdiction and may inform itself of such laws in such manner as it may deem proper. In the absence of such pleading, it shall be presumed that the common law of such state, territory or other jurisdiction of the United States is the same as the common law as interpreted by the courts of this State. L. 1941, c. 81, amended L. 1942, c. 104 (R.S. 2:98-28 et seq.); Franzen v. Equitable Life, &c., Society , 130 N.J.L. 457 (Sup. Ct. 1943).
In the present case it is not apparent that the applicable law was either pleaded or proved. Kelly v. Kelly , 134 N.J. Eq. 316 (Prerog. 1944); Bosze v. Metropolitan Life Insurance Co. , 1 N.J. 5 (1948); Shepherd v. Ward , 5 N.J. 92 (1950).
However, since the cause of action was debated before the judge of the Chancery Division and evidently considered and decided by him in the light of the decisional law of the courts of Pennsylvania, we will review it in the same aspect.
We are not aware of any more informative exposition of the law of Pennsylvania concerning this subject than that which we quote from the recent decision of the Superior Court of Pennsylvania in Ksionska v. Philadelphia & Reading Coal & Iron Co. , 82 A. 2 d 505 (Super. Ct. , July 19, 1951):
"A common law marriage, admittedly valid in Pennsylvania, is one effected by agreement of the parties without the benefit of the formality of a church ceremony, an officiating officer, and without license. Essential prerequisites are mutual consent and intention
to effect a present marriage, as distinguished from an agreement to effect a marriage at some future time. That mutual intention must be expressed per verba de praesenti and not per verba de futuro.
A common law marriage may be established by (1) proof of the contract itself; and (2) proof of cohabitation and reputation from which the fact of the contract may be inferred. Pierce v. Pierce , 355 Pa. 175, 179, 49 A. 2 d 346 [ Sup. Ct. 1946]; In re Nikitka's Estate , 346 Pa. 63, 29 A. 2 d 521 [ Sup. Ct. 1943]; In re McGrath's Estate , 319 Pa. 309, 315, 179 A. 599 [ Sup. Ct. 1935]; In re Craig's Estate , 273 Pa. 530, 533, 117 A. 221, 222 [ Sup. Ct. 1922]. It is the fact of the contract itself which is the proof of the marriage. Proof of cohabitation and reputation as husband and wife does not establish the marriage, but is evidence from which the fact of a marriage contract may be presumed or inferred. Grimm's Estate , 131 Pa. 199, 201, 18 A. 1061, 6 L.R.A. 717 [ Sup. Ct. 1890]; In re Yardley's Estate , 75 Pa. 207 [ Sup. Ct. 1874]; Pierce v. Pierce, supra , 355 Pa. 179, 49 A. 2 d 346 [ Sup. Ct. 1946]. Such presumption or inference, however, may always be rebutted and will wholly disappear in the face of proof that no marriage in fact had been celebrated. In re Nikitka's Estate, supra; Appeal of Reading Fire Ins. & Trust Co. , 113 Pa. 204, 6 A. 60 [ Sup. Ct. 1886].
If a litigant does not rest a case upon proof of cohabitation and reputation but offers evidence of the marriage contract itself, the result must depend upon the sufficiency of the latter evidence. Pierce v. Pierce, supra , 355 Pa. 179, 49 A. 2 d 346 [ Sup. Ct. 1946]; Fitzpatrick v. Miller , 129 Pa. Super. 324, 327, 196 A. 83, 85 [ Super. Ct. 1937]; Murdock's Estate , 92 Pa. Super. 275, 277 [ Super. Ct. 1927]. Evidence of cohabitation and reputation as man and wife are of no avail if the asserted contract does not meet the standards required by law. Pierce v. Pierce, supra; Bisbing's Estate , 266 Pa. 529, 531, 109 A. 670 [ Sup. Ct. 1920]; Fitzpatrick v. Miller, supra; In re Murdock's Estate, supra.
Mr. Justice Patterson, speaking for the Court in Re Nikitka's Estate, supra , said, 346 Pa. at page 65, 29 A. 2 d 521, 522 [ Sup. Ct. 1943]: '* * * it has been held over and over again that where the claimant herself proves that no valid contract was actually entered into, evidence as to cohabitation and reputation is worthless.' If, however, there is proof of a valid marriage contract, evidence of cohabitation and reputation is proper corroboration of that fact, -- corroboration in the sense that the parties had, relying upon their agreement, lived together as husband and wife and were so known and recognized in the communities in which they lived."
Inasmuch as the central point of the present appeal implicates the weight of the credible evidence, we endeavor in a summary fashion to impart the evidence introduced by and on behalf of the defendant.
During some period of time before June 30, 1940, the decedent had been a widower with the two children, then minors. The defendant was a widow with one son, her husband having died on January 7, 1939. There is no intimation that their associations were meretricious, but rather their relationship was characteristic of a conventional courtship. We ascribe some material significance to that fact. They were not of the same religious sectarian faith and that disparity intervened in their discussions of prospective marriage. Vide, Chirelstein v. Chirelstein , 12 N.J. Super. 468, 483 (App. Div. 1951). Had it not been for that impediment it may logically be inferred that the parties would have by mutual consent been united by means of a ceremonial marriage. That circumstance we regard as enlightening and explanatory of their chosen course of procedure.
About three weeks prior thereto they ultimately resolved to become husband and wife on June 30, 1940, and thereafter cohabit as such. It seems to us perfectly natural and not fantastic that in the consummation of such an agreement they would practice some deception on their children and represent to them that they intended to enter into a ceremonial marriage on that day at Williamstown. It is reasonable to infer that in the pursuit of their plan, they ...