¶1concurring.
¶2The opinion already written by my associates so fully covers every ¡question in this case that I do not care to discuss any of them at length, ¡but simply to give my reasons for concurring in the majority opinion.
¶3I agree with both of my associates upon the question that there ¡may be a valid common law marriage in Ohio, and the essential elements ¡necessary to constitute such a marriage. It. may be a matter of regret "that such is the law, but it is not the province of the court to legislate ¡upon .such subjects, they have discharged their full duty when they *325declare the existing law and apply it to the facts and circumstances of the case at issue. I do not agree with our dissenting associate that, the correct solution of this case depends entirely upon the evidence of the witness calling herself Margaret Umbenhour. True, we must have recourse to her evidence, for any oral evidence touching the contract. in presentí, and if her evidence in that behalf were not corroborated by other facts proven in this ease I would very readily agree with the contention of counsel for plaintiff and defendant, Hazel Umbenhour,. not that the witness so unfavorably impresses me as to discredit her own evidence in that behalf, but the language, that she stated was used1 in the making and entering into this contract, is hardly the language that you would expect persons in their situation and condition of life to use, but, notwithstanding that fact, it is just as certain that some change came into their lives about that time. It is undisputed in this evidence that about that time,, or within two weeks thereafter, and just as soon as the hotel could secure another laundress, this woman gave up her position there and went to live with Willard P. Umbenhour, and their relations thereafter were to all intents and purposes the same as the relations of husband and wife. Willard P. Umbenhour shortly thereafter told a friend of his that he had been married at Wooster, and with whatever persons they came in contact.in Massillon during the remainder of the time they lived there, they introduced eaeh other as husband and wife, and after they removed to Alliance their relations were such and conduct was such, and their treatment of each other and the child was such as it would have been had they in truth and fact been married. So that everything that follows up until the death of Willard P. Umbenhour from and after this claimed contract or pledge was made is perfectly consistent with the claim, and especially the fact that he took Margaret to the funeral of his uncle and there introduced her to his relatives as his wife. It is true that prior to his death and after the birth of the child, he said to Margaret, “now, we ought to be married,” but this does not necessarily preclude the possibility, or even the probability, of a common law marriage having taken place between them, for I am inclined to the belief that even though all transpired that has been testified to by Margaret, yet these people were, perhaps, of the opinion that they were not legally married, but their opinion upon the subject is not important. If this were a criminal prosecution of Margaret or Willard for bigamy, or a prosecution against Willard for failure to provide, his mere opinion as to whether he had or had not been legally married to Margaret would be of no avail, but the cas® would be determined upon the facts proven, and not otherwise..
¶4*326I am also thoroughly in accord with what is stated in the dissenting opinion, as to what these people should have done had they had any decent regard for society or for the welfare of their offspring, but I am not in accord with the statement that a court ought not, at the expense of two innocent children, divide their patrimony and give it to their unfortunate child. This child is just as innocent of wrong as the two children who are conceded to be legitimate. Its rights are just as sacred to this court and ought not to be sacrificed upon the mere suspicion or mere possibility that Margaret Labus or Margaret Umbenhour is telling an untruth. This child has much more at stake in this litigation than the dollars and cents it will acquire in this partition suit, and if it is in fact legitimate these other children, Lee and Hazel Umbenhour, aré interested and ought to be concerned in having its legitimacy determined, and even if by doing so their share of the patrimony should be less, yet it is certainly to their advantage, and ought to be a source of great gratification to them, and certainly will be when they reach more mature years, to know that their half-sister is legitimate, and that the last hours of their father’s life were not spent in criminal relations with the mother of this child. But these considerations by no means determine the questions at issue. The evidence must control, no matter who it helps or hurts.
¶5These matters are referred to only as showing the gravity of the case and the care and consideration that courts should exercise in determining the rights of the respective parties, and after careful and mature consideration of. all this evidence I have reached the conclusion that there was such a contract in presentí as the law requires, and that such contract was followed by a change in the relations of the parties, and was followed by cohabitation and the holding each other out to the world as husband and wife, and that by reason thereof there was a valid common law marriage'between Willard P. Umbenhour and Margaret Labus, and that the defendant, Grace Helen Umbenhour, was and is the legitimate child and heir of Willard P. Umbenhour, and as such comes within the provisions of the deed of Jacob Umbenhour to Willard P. Umbenhour for “his natural life, and to the heirs of his body, if any he have. ’ ’
¶6dissenting.
¶7I cannot concur with the judgment of the majority of the court for the following reasons:
¶8On December 1, 1887, Jacob Umbenhour, by deed conveyed to Willard P. Umbenhour the undivided one-fourth part of certain prem*327ises in Stark county, Ohio, during the natural life and “to the heirs of his body, if any he have.” There are other provisions in this deed, but they are unnecessary to note in the determination of this case.
¶9Willard P. died February 14, 1907. Lee and Hazel Umbenhour •claim to be the only heirs of his body, and, if found to be such, are entitled to the property involved in this case.
¶10It is not disputed that these two are the children of Willard P. and Lucy Umbenhour, bom in lawful wedlock. Willard P. and Lucy were divorced sometime in February, 1901.
¶11On October 3, 1902, Grace Helen, a daughter of Willard P. and Margaret Labus, was born, and,. through her guardian, claims the undivided one-third of this property. On her behalf the claim is made that, after the divorce of Willard P. and Lucy, that Willard P. and Margaret Labus, on May 12, 1901, entered into a consensual marriage, and that this relation existed until the death of Willard in 1907.
¶12The evidence fully establishes the fact that, prior to the divorce of Willard and Lucy, the relations between Willard and Margaret Labus were illicit, and continued so until, as she claims on May 12, 1901, they agreed to become husband and wife. The only evidence of the contract of marriage is found in the testimony of the witness, Margaret Labus. She says, in speaking of their relations, that “Before the divorce the same were illicit.” “After he was divorced he said to me, ‘Mag, you get the blame, and we might as well have the game.’ So he said, we will be married, and' it went on ’til May. ’ ’ Then in May, down in his room, she says the following took place: “Well, in May— it went on ’til May and Billy said to me, the court won’t give us no' license, and he took my hand and he said, ‘I pledge myself as a true and lawful husband to you the longest day I live.’ And I said to Billy, ‘I pledge myself as a true and lawful wife to you the longest day I live.’ He slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘if we have any children, they will hold us together.’ ” These are the words of the contract or agreement in presentí, which, it is claimed, fixed the status of these parties, as there is proof of co-habitation continuing from about this time until the death of Willard in 1907'. This agreement was the only contract claimed to have been made between these parties, and there is no claim of any other, or different, •contract or mai’riage ceremony. This case rests on the truth or falsity¡ <jf this testimony. •
¶13If this story, taken in connection with all the circumstances of the case, is unworthy of belief, then the claim of Grace Helen to part of this property must fail.
¶14*328A witness is entitled to be believed unless impeached by other witnesses, or his own story, or discredited by the cireumstáhces of the case.
¶15This witness is impeached by her own story. She gave an altogether different account of her relations with Willard shortly after his death. She then claimed that she had been married by a minister on a large body of water, a distance from the shore. She explains that she gave this account of her marriage because she was ashamed to tell the truth. She tells this story shortly after Willard’s death when she did not have the time to fully make up or invent the story that she now tells. This contract or pledge was kept a profound secret; never brought to light until testified to in court. Both of these parties knew that the usual and ordinary way to enter into the marital relation was in public, and by employing the offices of priest, minister or magistrate. It is not shown that either knew that the marriage relation might be entered into without a solemnization by a magistrate or minister. It does not appear from the proof that either knew that this so-called pledge had any binding force or effect. On the contrary, there is proof that they did not deem it binding or valid.
¶16Recurring to the testimony of Margaret: “Willard said, before his death, “we ought to be — we ought to be married now.’ ” “And what did you say? Did you agree to that?” “Why, sure I did.” “Did Billy speak about getting a license and getting married after May 12, 1901, and up to the time of his death?” “Not until up until a little while before his death.”
¶17There is not a single declaration or admission of either of these parties as to the fact that a marriage ceremony, or a marriage contract, as testified to by Margaret, had taken place.
¶18While Willard P. entered the name and date of birth of Grace Helen in the fly leaf of the Bible, with that of his other children, he does not enter the fact of this marriage, or the date of it in the Bible, or, in connection with the date of the birth of Grace Helen. He, in fact, knew, that his marriage with Lucy was a matter of record and its proof, easy. He does nothing to bring to light the secret and unusual transaction, as testified to by Margaret Labus. The witness herself says, that she never told anyone how or when they were married, or told the story she now tells. The story of the pledge is not credible. The language employed is not such as persons situated as these persons were, would employ. 'Nor would they employ this manner of getting married. The proof does not show that either ever knew of such a formula being employed, .or of such a marriage ever having taken place. It is consent or agreement, and not cohabitation, that fixes the status *329of marriage, and this consent, or agreement, is not established by the proof. The circumstances of the ease are against the claim that there was a marriage and not a mere consummation of the illicit relation.
¶19The following rules are well established and understood and supported by abundant authorities: Relations illicit to the inception, when there is no impediment to marriage, the presumption is, that their continuance is of the same character. The fact that a woman assumes a certain name, is not any evidence that she is married to the man of that name.
¶20Acknowledgment of marriage. Marriage will not be presumed from mere acknowledgment, when the acknowledgment is as referable to improper relations as to matrimonial; or where it appears that the acknowledgment is made to conceal the unlawful relation. Mere reputation that parties are husband and wife, is not enough to warrant a presumption of marriage. This reputation must be general and uniform. Proof of change in relations, the evidence must establish that the change was referable to the contract of marriage, or to a valid marriage, or the presumption will obtain that the illicit relations continue.
¶21That there was any change in the relation of these parties, cannot fairly be claimed. Their association before this so-called pledge was meretricious and they made no change, except to continue the relations more openly, carefully concealing the fact that anything like the semblance of a marriage had taken place. Had either of these parties desired to make public the fact that they were not continuing their former relations, but that they had in fact been married as claimed, it could easily and surely have been done by stating the fact to relatives or acquaintances, in the presence of the other, and silence of the admission of the fact would have been proof that it had taken place. The very fact that during these years no such admission or public declaration was made by either, negatives the idea that the pledging ever took place, and the holding out was, in fact, to cover a relationship that was improper. The writing of the name “Grace Helen” in the Bible, and the acknowledgment of her as their child, does not establish a marriage. She was their child, but the acknowledgment does not prove that she was born in wedlock. Many a natural father has acknowledged his child, and acknowledged the mother of the child as its mother, but that does not establish the fact that she was the wife. He said in his last days. “He wished that Grace might share with the other heirs.” Had there been a contract between these parties, dating from May, 1901, and it was believed or known that it was binding,- why thus wish that the child might share with his other children?
¶22*330Finally, there is no reason given for their taking up with each other, and living as they did, if they desired to change their meretricious .relation to one matrimonial. They knew that people in these days, in .a respectable community, publicly unite in marriage, so that their status, and that of their children, will not be left to any uncertainty. They knew that a public marriage is deemed and held respectable, and that a secret one is looked on with suspicion. Did they desire to make amends for their past conduct, they would have been married publicly by a magistrate or a minister. Even after the birth of their child, if they had any regard for its future, they would have made some permanent provision, so that its rights would not have been left to the very uncertain testimony of a single witness and its legitimacy left in doubt. Their conduct is only explained by the belief, that they were never married, or that they never had any regard for their child, or hoped that some court, at the expense of two innocent children, would divide their patrimony, and give it to their unfortunate child, thus giving it a status and legitimacy which they, without a decent respect for the usages and customs of respectable society, had denied it.