Ponder, Executor, vs. Graham.-Points decided. WILLIAM G. PONDER, EXECUTOR OF ARCHIBALD GRAHAM, APPELLANT, V. MARY GRAHAM, APPELLEE. As respects third persons, a man who lives with a woman, and holds her out as his wife, is estopped from denying it, when charged with liabilities as her husband, but such recognition cannot affect the rights of property even as between themselves. The executor of a person who has recognized a woman as his wife, is not estopped from setting up and asserting the illegality of the marriage, where it was absolutely void, as where there existed a civil disability to contract marriage. The marriage being void, no civil rights can be acquired under it, and it is competent for the executor, representing the interests of distributees and creditors, to impeach its validity. The act of Congress, approved March 30, 1822, by which the Territorial Government of Florida was organized, and the several acts amendatory thereof, are to be regarded as the Constitution of the Territory, differing, however, from the Constitution of the State Government in this that the former contains grants of power, while the latter are restrictions of power primarily possessed. By the organic law, the judicial power of the Territory was vested in two Superior Courts, &c., and the legislative power in a Governor and Council, and this power was to extend to "all rightful subjects of legislation." An act of the Legislature which undertakes to determine questions of fact and law, affecting the rights of persons, or of property, is judicial in its character, and is not, therefore, a rightful subject of legislation. And though the facts and reasons alleged in an act of divorce are such as, by law, would warrant the sentence or decree, yet the inquiry into those facts and reasons is judicial in its nature, and the determination upon them is a judicial act. The act of the Legislative Council, passed in 1828, gives to the courts jurisdiction in cases of divorce. The Legislative council had no power or authority, after the act of 1828,to take jurisdiction of, and decide questions of divorce, and to pass an act dissolving the marriage contract between two persons, lawfully made and entered into-nor was the power or authority possessed by the Legislative body either before or after said act. Ponder, Executor, vs. Graham.-Statement of Case. Marriage is a contract, in the strict, legal definition of the term, and a law dissolving the marriage relation, impairs the obligation of the contract, and is in conflict with the Constitution of the United States, and is, therefore void. Appeal from judgment of the Circuit Court of the county of Leon, rendered at the Spring term, 1850, the Honorable THOMAS BALTZELL, Judge, presiding. Mary Graham filed her petition in the Circuit Court of the county of Leon, representing that her husband, Archibald Graham, died on or about the 2d January, 1848, after having in his life time made and executed his last will and testament-that said will and testament bears date 16th November, 1847, and that one John R. Cannon, and the defendant, William G. Ponder, were therein named and appointed executors that defendant alone qualified and took out letters testamentary-that the provision made in the said will is not satisfactory to petitioner, and that she, in due form, and in proper manner, signified her dissent thereto, within the time limited by law. The petitioner further states, that her deceased husband died seized and possessed of a large estate, real, personal, and mixed-out of which, petitioner prays that dower may be allotted to her, under the law in such case made and provided. The defendant for answer, or plea to said petition, alleged that the said Mary Graham ought not to have her dower, as in her petition she claimed and prayed, because the said Mary never was accoupled to the said Archibald Graham, deceased, in lawful matrimony. To this plea, there was a replication, affirming that petitioner was accoupled in lawful matrimony with the said Archibald Graham, and issue thereon. The jury found for the petitioner; and thereupon it was adjudged and ordered, that said petitioner is entitled to an assignment of dower, and a writ of dower issued as prayed for, commanding the sheriff to summon five discreet free holders as commissioners, to allot and set off, by Ponder, Executor, vs. Graham.-Statement of Case. metes and bounds, to Mary Graham, widow of Archibald Graham, one-third part, according to quantity and quality of the real estate of which the said Archibald died seized, whereof the said Mary had not relinquished her right of dower, and at the same time to allot and set off to the said widow her portion, or one-half of the personal estate of the deceased. The commissioners summoned by the sheriff made their report, August 8th, 1850, which was confirmed-but to which the counsel for appellant excepted, for the reason that the "said commissioners have assigned, allotted and set apart to the said Mary, one-half part of the gross amount of the personalty, without having first deducted therefrom the amount of debts due by said decedent at the time of his death—this exceptant contending, that the widow of one deceased is only entitled to a share of the nett personal estate, deducting all debts and charges upon the same, at the time of the death of decedent, and the expenses of administration"— which exception was, however, overruled by the court. The facts of the case are succinctly these: The respondent, then Mary Buccles, about the year 1820, in South Carolina, intermarried with one Solomon Canady. Some time afterwards, they removed to, and resided in, Georgia, but soon, in consequence of domestic dissentions, separated.Mary went to reside with Graham, a bachelor, and continued to live with him, under circumstances from which an adulterous cohabitation might be inferred. In 1832, and while the said cohabitation continued, a bill was passed by the Legislative Council of the then Territory of Florida, entitled "An act for the relief of Mary Canady." By this act, the Legislative Council, for the cause expressed in the preamble, assumed to judge and declare that the said Mary Graham was thereby divorced from her said husband, Solomon, and the bonds of matrimony subsisting between them, were thereby to be entirely and abso Ponder, Executor, vs. Graham.-Statement of Case. lutely dissolved, as if the same had never been solemnized. (See pamphlet acts of 1833, page 123.) There does not appear to have been any petition, affidavit, or proofs-a reference to a committee to ascertain the facts, or any notice to the absent husband. In 1834, the cohabitation between Mary and the testator still subsisting, the ceremony of marriage is celebrated between them, and from this time up to the period of the testator's death, which occurred in 1848, he lived with her, and acknowledged her as his wife, and in his will he provides for her by that name, and in that relation. On the trial of the case in the court below, defendant's counsel prayed the court to instruct the jury as follows, viz: 1. That the Legislative council of the Territory of Florida had no power or authority to take jurisdiction of and decide questions of divorce, and to pass an act dissolving the marriage contract between two persons, lawfully entered into between them; and that, therefore, the act of the Governor and Legislative Council of the Territory of Florida, entitled an act for the relief of Mary Canady, passed February 9th, 1832, rejected February 10th, 1832, and reconsidered and passed by the requisite majority, February 11th, 1832, is void and of no effect. 2. That it is incumbent on the party claiming the benefit of the said act, to show that the other party, to wit, Solomon Canady, had notice of the said proceedings before the Legislative Council, and had an opportunity to appear before it, and cross-examine the witnesses-introduce evidence in his favor, and make defence to the said complaint; and that in the absence of such proof, especially if the jury believe from the evidence that Solomon Canady was not a resident of the Territory of Florida, the said act is to be disregarded, as invalid. 3. That all judgments rendered any where against a par Ponder, Executor, vs. Graham.-Statement of Case. ty who had no notice of the proceeding, are rendered in violation of the first principles of justice, and are null and void which instructions so prayed, numbered one, two and three, the court refused to give to the jury. The court then gave the following instructions: 1. That the marriage of Graham with the petitioner is legal and valid, unless the act of the Legislative Council of 1832 was against the provisions of the organic law, so as to make it void. 2. That prima facie, the action of the Legislature is to be regarded as valid, and it lies upon the party contesting it to maintain its invalidity, by showing that it was passed under circumstances not justified by the constitution and laws then existing. 3. If you shall be of opinion that the marriage contract between Canady and his wife was in full force and operation, securing to each the rights and privileges inherent to such relation, so that the contract was not abrogated and annulled, but operative and in force, and especially that the same was in full force, so far as the husband was concerned-then it was not competent for the Territorial Legislature to declare a divorce between the said parties, and such action was illegal and void, as impairing the obligation of the contract. 4. That if a party has, beyond all question, impaired and broken the marriage contract, so that its existence as a contract may no longer, with propriety, be asserted that the clause of the Constitution of the United States, providing that no States shall pass a law impairing the obligation of a contract, is not affected by the action of a Legislature declaring a divorce, and allowing a new marriage. 5. If you shall be of opinion that the husband had violated the contract, and in fact impaired its main provisions and constituent elements, by deserting his wife, withdrawing from her society, refusing to her a suitable maintenance |