Note 606 — Chapter XVIII · PROBLEMS OF MARRIAGE AND THE FAMILY

In the case of Fenton v. Reed (1809), 4 Johns., 52; 4 Am. D., 244; Ewell, Cases on Domestic Relations, 397-99. Following are the essential facts in this celebrated case. In 1785 John Guest "left the state for foreign parts." During his absence, in 1792, his wife Elizabeth married Reed. Subsequently in the same year her first husband, Guest, returned to the state and there resided until his death in June, 1800. He professed to have no marital claim upon Elizabeth; so she lived with Reed as a wife continuously from 1792 until the latter's death in 1806. Was she the lawful wife of Reed from 1792 to 1800 during the lifetime of Guest? If not, was she, without the observance of any formalities, his lawful wife from 1800 to 1806 after Guest's demise? To the first question the court answered "no," holding that "the statute concerning bigamy does not render the second marriage legal, notwithstanding the former husband or wife may have been absent above five years, and not heard of. It only declares that the party who marries again in consequence of such absence ... , shall be exempted from the operation of the statute, and leaves the question of the validity of the second marriage just where it found it." To the second question the court answered "yes," as explained in the text. Cf. Starr v. Peck, 1 Hill, N. Y., 270.