Patchen v. Devin

By the Court,

In this case the evidence on the part of the appellant was amply sufficient to show a marriage; and although that evidence was somewhat impeached, still we are not satisfied that there was sufficient to overcome the testimony.

A reversal of the surrogate’s decree will give the parties the opportunity to submit the case to á jury, where we think such a question should be decided. Where there is a clear preponderance of testimony, such a course is not necessary ; but when we doubt as to the facts submitted for the purpose of contradicting the evidence of the claimant, and more especially when there is offspring from the marriage, recognized by the deceased as his, we think we shall best promote the ends of justice by ordering this case to be tried by a jury.

Decree of surrogate reversed, and a trial ordered at the circuit.

Ingraham, Leonard and Rosekrans, Justices.]