by John Marshall Harlan

“ He said that 'where words have once got a clear, settled, legal meaning, it is very dangerous to conjecture against that, upon no better foundation than simply that it is improbable the testator could have meant to do one thing by one set of words, having done another thing, using other words, as to persons in the same degree of relation to him.' It would seem clear that the words 'without leaving a wife or child or children,' where they first appear in the above general provision, were purposely chosen. They appear three times in the will, and their usual meaning is not doubtful. ”

“ It may be shown by what is called habit or repute. Referring to marriage at common law, Kent says: 'The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy or adultery, when actual proof of the marriage is required.' 2 Kent, Com. ”

“ A void contract is not made over again or validated by being acted upon at a time when a valid contract could be made. When a void contract is acted upon, the remedy, when there is one, is not on the contract, but upon a quasi-contract, for a quantum meruit. There is no such alternative when a marriage fails. ”

“ Rep. 404, 406, 19 Atl. 172, 173, the court of chancery of New Jersey said: 'Two essentials of a valid marriage are capacity and consent. . . . Marriage is a civil contract, and no ceremonial is indispensably requisite to its creation. A contract of marriage made per verba de proesenti amounts to an actual marriage and is valid,' quoting O'Gara v. ”

“ I hereby appoint my wife sole executrix of this, my last will and testament.' That will was duly proven before the surrogate of Ocean county, New Jersey, partly by Mrs. Travers, and that officer certified that 'Sophia Virginia Travers, of the county of Ocean, the executrix therein named, proved the same before me and she is duly authorized to take upon herself the administration of the estate of the testator, agreeably to said will.' That will was duly filed and recorded in the proper office in the District of Columbia. ”

“ Bell, 6 Pet. 68, 75, 8 L. ed. 322, 325; Finlay v. King, 3 Pet. 346, 377, 7 L. ed. 701, 712. The same thought, in substance, was expressed by Lord Chancellor Eldon in Crooke v. De Vandes, 9 Ves. Jr. 197, 205. ”