addressed, and that these letters were put in his pocket by Hulett for the purpose of posting them when he reached the city. These facts, if true, amounted to such a recognition of and assent to the statements contained in the letter as to make them, in effect, the joint declarations and statements of both Hulett and the respondent, and therefore competent as his admissions. It is urged very strenuously by counsel for the appellants that the testimony of the respondent, by which she was thus enabled to connect Hulett with the contents of her letter, impinges upon the statute that it shall not be competent for any party to an action or interested in the event thereof to give evidence therein of or concerning any conversation with or admission of a deceased person relative to any matter at issue between the parties. Gen. St. 1894, § 5660. It was held in Chadwick v. Cornish, 26 Minn. 28, 1 N. W. 55, followed in subsequent decisions, that the language of the act refers only to spoken words. If it was a question of first impressions, it might admit of discussion whether the statute ought not to be construed in accordance with the views of the late Chief Justice Gilfillan, so as to include any admission of the party, whether by word or act. The peculiar facts of the present case illustrate the fact that admissions by act may often be as much within the mischief aimed at as admissions by spoken words. But, as the narrower construction placed upon the statute has been adhered to and followed for nearly 18 years, during which the legislature has not seen fit to amend the law, it is now too late for us to reconsider the question.

None of the exceptions to the charge are well taken or of sufficient substance to require discussion. In fact, the charge was, in most respects, a model one. Instead of merely stating general abstract principles of law (as is often the case), which the average lay juror is usually incapable of correctly applying to the facts of the particular case, the learned judge gave the jury the benefit of a very full, clear, and impartial analysis of the evidence, taking up each important branch of it, and explaining to them its bearing upon the issue which they were to decide. This disposes of all the assignments of error relating to the trial of the issue before the jury.

3. When the other issues came on for trial, by stipulation of the parties all the evidence introduced upon the trial before the jury was deemed as introduced, subject to the same objections and exceptions, in the trial by the court. A small amount of additional evidence having been introduced, both appeals were submitted to the court for its decision. The court thereupon made separate findings of fact and conclusions of law in each appeal. The second finding of fact in each case was to the effect that the deceased and the petitioner were husband and wife, the only difference being that in the one appeal the finding was that they were such on the 7th of January, 1892 (the date of the execution of the marriage contract), and on the 25th of July, 1892 v.69N.w.no.2-3

(the date of Hulett's death), while in the other appeal the finding was that they becaine husband and wife on the 7th of January, 1892; the difference in the two findings being, in our opinion, immaterial. The court held, as conclusions of law, in the one appeal, that the petitioner was entitled, as widow, to an order setting apart to her the homestead of the deceased, etc.; and, in the other, that the will of Hulett, executed in 1862, was revoked by his subsequent marriage to the petitioner. It is to this second finding of fact and to this last conclusion of law that the appellants take exception, and this presents the two principal questions raised by these appeals. The respondent had been for a long time prior to the execution of the marriage contract in the employment of Hulett as housekeeper at his farm at Stoney Point, some miles out of the city of Duluth. Her testimony is that immediately after the execution of this contract she moved into his room, and that from henceforth until his death they occupied the same sleeping apartment, and cohabited together as husband and wife. But she admits that it was agreed between them that their marriage was to be kept secret until they could move into Duluth, and go to housekeeping in a house which Hulett owned in that city. While a feeble effort was made to prove that their marital relation had become known to one or two persons, yet we consider the evidence conclusive that their marriage contract was kept secret, that they never publicly assumed marital relations, or held themselves out to the public as husband and wife, but, on the contrary, so conducted themselves as to leave the public under the impression that their former relations of employer and housekeeper remained unchanged. Upon this state of facts the contention of the appellants is that there was no marriage, notwithstanding the execution by them of the written contract; that, in order to constitute a valid commonlaw marriage, the contract, although in verba de præsenti, must be followed by habit or reputation of marriage.—that is, as we understand counsel, by the public assumption of marital relations. We do not so understand the law. The law views marriage as being merely a civil contract, not differing from any other contract, except that it is not revocable or dissoluble at the will of the parties. The essence of the contract of marriage is the consent of the parties, as in the case of any other contract; and, whenever there is a present, perfect consent to be husband and wife, the contract of marriage is completed. The authorities are practically unanimous to this effect. Marriage is a civil contract jure gentium, to the validity of which the consent of parties able to contract is all that is required by natural or public law. If the contract is made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage, in the absence of any civil regulations to the contrary. 2

Kent, Comm. p. 87; 2 Greenl. Ev. § 460; 1 Bish. Mar. & Div. §§ 218, 227–229. The maxim of the civil law was "Consensus non concubitus facit matrimonium." The whole law on the subject is that, to render competent parties husband and wife, they must and need only agree in the present tense to be such, no time being contemplated to elapse before the assumption of the status. If cohabitation follows, it adds nothing in law, although it may be evidence of marriage. It is mutual, present consent, lawfully expressed, which makes the marriage. 1 Bish. Mar. Div. & Sep. §§ 239, 313, 315, 317. See, also, the leading case of Dalrymple v. Dalrymple, 2 Hagg. Consist. 54, which is the foundation of much of the law on the subject. An agreement to keep the marriage secret does not invalidate it, although the fact of secrecy might be evidence that no marriage ever took place. Dalrymple v. Dalrymple, supra. The only two cases which we have found in which anything to the contrary was actually decided are Reg. v. Millis, 10 Clark & F. 534, and Jewell v. Jewell, 1 How. 219; the court in each case being equally divided. But these cases have never been recognized as the law, either in England or in this country. Counsel for appellants contend, however, that the law is otherwise in this state; citing State v. Worthingham, 23 Minn. 528, in which this court used the following language: "Consent, freely given, is the essence of the contract. A mutual agreement, therefore, between competent parties, per verba de præsenti, to take each other for husband and wife, deliberately made, and acted upon by living together professedly in that relation, is held by the great weight of American authority sufficient to constitute a valid marriage with all its legal incidents"; citing Hutchins v. Kimmell, 31 Mich. 126. Similar expressions have been sometimes used by other courts, but upon examination it will be found that in none of them was it ever decided that, although the parties mutually agreed per verba de præsenti to take each other for husband and wife, it was necessary, in order to constitute a valid marriage, that this agreement should have been subsequently acted upon by their living together professedly as husband and wife. In some cases where such expressions were used the court was merely stating a proven or admitted fact in that particular case, while in others the contract of marriage was sought to be proved by habit and repute, and the courts merely meant that the act of parties in holding themselves out as husband and wife is evidence of a marriage. In State v. Worthingham, supra, which was a prosecution for bastardy, the defendant offered as proof of his marriage to the mother of the child that during all the time they lived and cohabited together the woman held herself out to her friends generally as his wife, and that both of them represented to the world that they had been married. The point really decided by the court, and evidently the only one it

had in mind, was that this was competent evi dence of a marriage, and that no formal solemnization or ceremony was necessary to give it validity. The statement in the opinion already quoted is probably subject to the criticism that it does not accurately discriminate between the fact of marriage and the proof of it. The case of Hutchins v. Kimmell, supra, cited by this court, does contain such expressions as "followed by cohabitation," and "from that time lived together professedly in that relation"; but this language was evidently used simply as a recital of the actual facts in that particular case. There is nothing in the opinion indicating that the court intended to hold that a mutual, present consent to be husband and wife will not constitute a valid marriage unless followed by cohabitation of the parties, and a holding of themselves out as man and wife. Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345, and Id., 79 Cal. 633, 22 Pac. 26, 131, is not in point, for the reason that section 55 of the Civil Code of that state provides that "consent alone will not constitute marriage; it must be followed by a solemnization or by a mutual assumption of marital rights, duties, or obligations." In view of the increasing number of common-law widows laying claim (in many instances, doubtless, fraudulently) to the estates of deceased men of wealth, it is a question for the legislature whether the common law should not be changed; but with that the courts have nothing to do.

4. This brings us to the last and most important question in the case, viz. was the will of Hulett revoked by his marriage to the re spondent? At common law the marriage of a woman absolutely revoked her will. The reason usually given was that, a married woman having no testamentary capacity, her will was no longer ambulatory. But the marriage of a man did not revoke his previous will in regard to either real or personal estate. This was not considered such a change of condition as would work a revocation by implication or inference of law. The reason usually given was that the law made for the wife a provision independently of the act of the husband by means of dower. But the marriage and the birth of issue conjointly revoked a man's will, whether of real or personal estate; these circumstances producing such a total change in the testator's condition as to lead to a presumption that he could not intend a disposition of property previously made to continue unchanged. The issue, the birth of which would revoke a will, must have been such as could have inherited the property which was the subject of the will, so that the effect of throwing open the property to the disposition of the law would have been to let in the after-born child or children, for whose benefit alone the implied revocation obtained. The chief reason why marriage and the birth of issue was deemed such a change of condition on part of the testator as would work a revocation of his will was that otherwise his issue, which was

the natural object of his bounty, would be wholly unprovided for, differing in that respect from the widow, for whom the law had made provision by means of dower. Hence it seems to have been the rule that marriage and the birth of issue would not produce the revocation of a will where provision was made by the will itself for the children of the future marriage. At common law a married woman could not inherit from her husband. In case of her husband dying intestate, she was not entitled to anything out of his estate except her dower. While by our statutes dower eo nomine has been abolished, yet the law makes provision for the widow, independently of the act of the husband, much more liberal than the common law did. She is entitled-First, to a life estate in the homestead of her deceased husband, free from any testamentary devise or other disposition to which she shall not have assented in writing, and free from all debts or claims against his estate; second, to an undivided third in fee simple, or such inferior tenure as the deceased husband was at any time during coverture seised or possessed thereof, of one undivided third of all other lands of which the deceased was at any time during coverture seised or possessed, free from any testamentary or other disposition thereof to which she shall not have assented in writing, but subject in its just proportion with other real estate to the payment of such debts of the deceased as are not paid from the personal estate. Of the personal estate of which her husband dies possessed the widow is entitled to all his wearing apparel; his household furniture, not exceeding in value $500; other personal property to be selected by her, not exceeding in value $500; a reasonable allowance for her maintenance during administration, which, in case the estate is insolvent, is not to be for more than one year. Gen. St. 1894, §§ 4470, 4471, 4477. Such is the provision which the law makes for the widow. The statute then provides that, where the husband dies intestate, the residue of his estate, real and personal, shall descend and be distributed as follows: First, to his children, and to the lawful issue of any deceased child by right of representation; second, if there be no child, and no lawful issue of any deceased child, then to the surviving wife. It is mainly on this last provision by which the wife may inherit from her husband that counsel for the respondent base their contention that in this state marriage alone will revoke by implication of law the prior will of the husband. Their argument may all be summed up in the proposition that, inasmuch as a widow may now inherit from her husband (which she could not do at common law), therefore marriage alone effects the same change in the condition or circumstances of the husband as was effected under the common law by his marriage, and the birth of issue who could inherit. The courts of two or three western states have taken substantially this position. See Tyler v. Tyler, 19 Ill. 151 Morgan v. Ireland, 1 Idaho, 786; Brown v.

Scherrer, 5 Colo. App. 255, 38 Paç. 427, approved and affirmed in 21 Colo. 481, 42 Pac. 668. In Tyler v. Tyler, supra, the question was not discussed at any great length, and the weight of that case as authority is somewhat impaired by the fact that in a subsequent case the court placed its refusal to reconsider the question mainly on the ground that the legislature had subsequently enacted that marriage alone, without the birth of issue, revoked a will, and hence that any decision which the court might make would be merely retroactive. The most able and forcible presentation of the arguments on that side of the question is to be found in the opinion of the Colorado court of appeals in Brown v. Scherrer, supra. But, after carefully considering all that has been said on that side, we are compelled to the conclusion that due weight has not been given to the fact that the main reason why, at common law, marriage and the birth of issue was deemed such a change in the condition or circumstances of the husband as would work an implied revocation of his prior will was that otherwise his issue would be wholly unprovided for, a thing which it was not to be supposed to have been in the contemplation of the testator; whereas, under our statutes, and, we assume, without special examination, under the statutes of those states in which the decisions cited were rendered, even if the will stands, very liberal provision has been made for the widow, independently of any act of the husband. There is a prevailing sentiment, often expressed by both courts and text writers, that marriage alone should be deemed such a change in condition and circumstances as will revoke a prior will. A statute to that effect was passed in England in 1837 (1 Vict. c. 26), followed by the enactment of statutes to the same effect in many of the states of the Union. How far this sentiment may have unconsciously influenced the decisions referred to it is impossible to say, but no court has ever assumed to hold on this ground alone, and in the absence of legislation affecting the question, that the common-law rule was abrogated, or so far modified, that marriage alone would revoke a will. It is also suggested that the common-law rule had its origin in part in the ancient desire to build upon families and family estates a consideration which has no place in this country. It is undoubtedly true that many of the doctrines of the common law had their origin in social or political conditions which have in whole or in part ceased to exist. But this fact alone will not usually justify courts in holding that these doctrines, when once thoroughly established, have been abrogated, any more than it would justify them in holding that a statute had been abrogated because the reason for its enactment had ceased. Any such rule would leave the body of the common law very much emasculated; as, for example, that pertaining to real estate. While, undoubtedly, the common law consists of a body of principles applicable to new instances as they arise, and not of inflexible cast-iron

rules, yet where the rules of the common law have become unsuited to changed conditions, political, social, or economic, it is the province of the legislature, and not of the courts, to modify them While we do not wish to be understood as intimating that no condition of legislation upon the subject of the rights of married women in the estates of their husbands would effect by implication a change of the common-law rule, yet our conclusion is that, in view of the main reason upon which the common-law rule was based that marriage alone would not, but that marriage and the birth of issue conjointly would, revoke the prior will of a man, and in view of the very liberal provision made by statute for the widow independently of the act of her husband, the mere fact that she may now, under the statute, in certain contingencies, inherit more from her husband, is not sufficient to warrant us in holding that the common-law rule has been so changed that marriage alone is such a change of condition or circumstances as will work an implied revocation of the prior will of the husband. We should have stated that our statute relating to the revocation of wills is substantially, if not literally, the same as that of 29 Car. II., which has been so generally adopted by the American states. Gen. St. 1894, § 4430.

The conclusion at which we have arrived on this question renders it unnecessary to consider other questions discussed by counsel; as, for example, as to the power of the probate court to set aside the probate of a will. In the appeal from the judgment setting aside to the petitioner the homestead of the deceased, and giving her an allowance out of his estate for her maintenance during administration, the judgment is affirmed. In the other appeal the judgment setting aside the probate of the will, and adjudging such will to be of no force or effect, is reversed.

McCORMICK HARVESTING MACH. CO. v. McNICHOLAS.

(Supreme Court of Minnesota. Dec. 7, 1896.)

SALE-RESCISSION-WAIVER OF CONDITIONS.

1. Evidence considered, and held that the trial court did not err in refusing to direct a verdict for the plaintiff.

2. Other unimportant assignments of error considered, and held to be without merit.

(Syllabus by the Court.)

Appeal from district court, Meeker county; Gorham Powers, Judge.

Action by the McCormick Harvesting Machine Company against P. T. McNicholas. From an affirmative judgment for defendant, plaintiff appeals. Affirmed.

Brown & Buffington and J. T. Byrnes, for appellant. Peterson & Foster, for respondent.

START, C. J. This is an action on a promissory note for $40 given, with others, in payment of the purchase price of a har

Ver

vester and binder sold by plaintiff to defendant. The answer admitted the note, and set up a counterclaim for damages arising from a breach of warranty of the machine. dict and judgment for $12.20 in favor of the defendant. The plaintiff appealed from the judgment.

The first assignment of error is to the effect that the trial court erred in refusing to instruct the jury to return a verdict for the plaintiff for the amount of the note. The second one is "that the court erred in holding that the plaintiff had waived a return of the machine." Both may be considered together, as each involves an examination of the contract of warranty and the evidence. The original printed warranty was as follows: "These machines are all warranted to be well made, of good material, and durable, with proper care. If upon one day's trial the machine should not work well, the purchaser shall give immediate notice to said McCormick Harvesting Machine Company, or their agent, and allow time to send a person to put it in order. If it cannot then be made to work well, the purchaser shall return it at once to the agent of whom he received it, and his payment (if any has been made) will be refunded. Continuous use of the machine, or use at intervals through harvest season, shall be deemed an acceptance of the machine by the undersigned." At the time of the sale, and as a part of the warranty, the agent making the sale indorsed upon the back of it the following written agreement: "Said company agrees to see said harvester to do its work, and all fixtures free of charge for the first year." There was no claim made by the defendant that the machine was not well made, of good material, and durable, with proper care, but the claim was that, by reason of its defective construction (the precise defect does not appear from the evidence), the binder attachment would clog, and could not be made to work, and was worthless. The agent who sold the machine saw it work the first season, and testified "that it did not work very good; it kept clogging right along." The evidence is practically undisputed that there was a breach of the warranty in this respect during the first harvest after the machine was purchased; that it would not work; that the plaintiff had notice of the defects, and its agent promised to send an expert to remedy them. It was not done, but the defendant never returned the machine. It is also undisputed that the defendant refused to give his notes for the machine, and thereupon, and in November, 1893, the parties entered into an agreement whereby the defendant gave his notes, antedated September 1, 1892, for the purchase price of the machine. The testimony of the defendant was to the effect that he gave the notes upon the consideration and condition that the plaintiff would make the binder do good work, and that such was the agreement. The agent of the plain