In Banc.

This is a suit brought by Mercedes E. Wadsworth, claiming to be the sole heir of John H. Brigham, deceased, for the purpose of setting aside the provisions of a certain will made by the deceased whereby all the defendants except the Security Savings Trust Company are named as beneficiaries. The Security Savings Trust Company is named as trustee to carry out the provisions of said will, the plaintiff not being in any way named therein.

The plaintiff alleges that she is the daughter and sole heir of John R. Brigham, and, not being mentioned in the will, that she is entitled to inherit as against all the beneficiaries in the will, some of whom are nephews and nieces and others of no relation whatever.

The case was tried before Honorable GEORGE TAZWELL, Judge of the Circuit Court of Multnomah County, but upon request of plaintiff he called an advisory jury and submitted to them the following questions:

Question 1: Is the plaintiff the daughter of John R. Brigham, deceased, who is mentioned in the pleadings in the above-entitled proceeding, and did the said John R. Brigham and the mother of plaintiff cohabit in the State of Oregon as husband and wife for over one year, the plaintiff being born as result of said relation? Answer: Yes.

Question 2: Were the parents of the above-named plaintiff ever formally married by means of a marriage ceremony either before or after the birth of plaintiff and while the said parents and each of them was single and capable of entering into a marriage contract? Answer: No.

The court set aside these findings as not supported by the evidence, and entered findings to the effect, first, that John R. Brigham at the time of his death, and always, had been unmarried and that he and Emily E. Liddy, mother of plaintiff herein, did not cohabit for one year or over and that plaintiff is not the issue of any such relation. Second, that the great weight of evidence is contrary to the verdict of the jury to the effect that John R. Brigham and Emily E. Liddy lived together as husband and wife in the State of Oregon for one year and that plaintiff is the result of such cohabitation, and that such verdict should be disregarded, set aside and held for naught. Third, that John R. Brigham and Emily E. Liddy, mother of Mercedes E. Wadsworth, plaintiff, were never formally married by means of a marriage ceremony either before or after the birth of plaintiff, and that plaintiff is not the issue of any marriage relation existing between John R. Brigham and Emily E. Liddy. Thereafter, the court made the following conclusions of law:

First: That the plaintiff is not an heir at law of John R. Brigham, deceased, and is not entitled to any relief whatsoever in this proceeding, and that the petition heretofore filed by her should be dismissed with prejudice.

Second: That the defendants are entitled to their costs and disbursements in this proceeding.

Thereafter a decree was entered conforming to these conclusions of law, from which decree the plaintiff appeals to this court.

REVERSED.

McBRIDE, J.

The first proposition that confronts us here is the question as to whether the plaintiff is the daughter of John R. Brigham. As to this, we think the testimony very largely preponderates in her favor. Plaintiff testified that she was born October 13, 1879, in Portland, and that from her earliest recollection she lived with her father, the decedent, and mother until 1883 or 1884, when he eloped with another woman; that she was always told by both that they were married in California a year prior to her birth; that later, being informed that Brigham had denied that she was his daughter, she attempted to obtain proof of the marriage, but owing to the marriage records of San Francisco having been destroyed by the great fire and earthquake of 1906, such proof was not obtainable; and that she was named and always called Mercedes Brigham and attended school under that name and never went by any other name until her marriage. There was a slight attempt to impeach her veracity, but the impeachment was confined to the statement of a single witness and he, although a gentleman of high character, seemed to base his testimony upon the result of a personal estimate from some business transaction with the deceased rather than upon a general reputation existing in the community.

The plaintiff had lived in and about The Dalles for several years, and, certainly, long enough for her general reputation for truth to have become well known in the community; and the fact that no other witness was called on this branch of the case by the defendants is significant.

We are disposed to accept her statement as those of any other unimpeached though vitally interested witness who testified to occurrences many of which took place more than forty years before this trial, and, while in view of the interest she has in this proceeding and the time that has elapsed, her statements may have been unconsciously colored, we do not feel at liberty to reject them entirely.

Her testimony, as to the general conduct of the deceased toward her, indicates all the usual affection of a father for his daughter. He called himself "papa," made her presents and conducted himself during her tender years as a father would toward a beloved child. One incident that strongly corroborates her statement in this regard, and which cannot be disputed, is a present of a childish series of leaflets embodying pictures and verses of a "Mother Goose" character upon which is written in his undisputed and undisputable handwriting, "To Sadie Brigham from Papa," the words "to" and "from" being printed and the other words being in Brigham's handwriting. In corroboration of her claim, Mrs. Mary K. Britten of The Dalles testified as follows:

"Q. Where do you reside, Mrs. Britten? Where do you live? A. Your Honor, I am hard of hearing, I wish counsel would come forward.

"Q. I'll speak a little louder; I think that she can hear me. Where do you live, Mrs. Britten? A. In The Dalles, Oregon.

"Q. How long have you lived in the state of Oregon, approximately? A. It will be forty-six years November 4th.

"Q. Were you acquainted with John R. Brigham during his lifetime? A. I was.

"Q. Did you know, or were you acquainted with the plaintiff here, Mrs. Wadsworth? A. I am.

"Q. How long have you known Mrs. Wadsworth, or how large was she when you first saw her? A. Well, she was a very little girl; possibly a year old or more.

"Q. When and where did you first see John R. Brigham? A. In The Dalles, Oregon.

"Q. At what place in The Dalles did you see him? A. The Umatilla House.

"Q. Who was with him when you saw him at the Umatilla House? A. Sadie, or Mrs. Wadsworth, and her mother and Mr. Brigham.

"Q. And how large was Sadie at that time, did you say? About how old would you think she was? A. Oh, I should think about a year or more old; she was just beginning to walk.

"Q. Did you meet John R. Brigham formally at that time? Were you introduced to him? A. I was.

"Q. Now, just tell the jury, Mrs. Britten, what took place at that time, at that meeting? How you met him, and what happened? Who was there, and all about it? A. Well, I just came from the boat, from New York state, and we stopped at the Umatilla House, and my sister was with me, and we went in and sat down. They were expecting the news about Garfield's election, and we all went in there and sat down, and we happened to sit in a seat next to Mrs. Wadsworth's mother, and my sister introduced me to Mrs. Liddy; and she says her name was Liddy at one time, but she said, 'Excuse me,' she said, 'It is Mrs. Brigham.'

"Q. Was John R. Brigham there at that time? A. He was sitting next to her.

"Q. What did he say or do, if anything? A. And my sister asked him, 'Are you married?' and he said, 'we are,' and she said, when my sister introduced me, she said, 'If you please I am not Mrs. Liddy; I am Mrs. Brigham; this is my husband'; and we asked him if he was married, and he said, 'We are'; and he picked up the little girl and held her up, and he said, 'Look at our marriage certificate.'"

This witness further testified that upon two subsequent occasions she visited the Brighams in Portland, once at their home in the Reed Block and once at the St. Charles Hotel, and found there Sadie, this plaintiff, and her mother and Mr. Brigham. She seemed to be a disinterested witness and her testimony is entitled to great weight. The witness further testified, in substance, that she visited Brigham in company with plaintiff a few days before his death. That he evinced a desire to see plaintiff, who was waiting outside, and that when plaintiff, at the call of the witness, entered the room he, Brigham, greeted her affectionately; that they embraced each other with tears and conversed but out of the hearing of witness who withdrew to another part of the room.

Mr. Comini of The Dalles testified that he saw Mr. Brigham in regard to a tombstone for plaintiff's mother and when he left Brigham told him to give his best regards to his daughter, meaning plaintiff.

Thomas A. Doud, a witness for plaintiff, testified that he formerly resided in Binghampton, New York, where Mr. Brigham was born and where his folks lived; and that he came to Portland in 1882 and soon became acquainted with Mr. Brigham, an acquaintance, which seems to have been fairly intimate. Among other matters, he testified as follows:

"Q. Please tell the jury what you said and what he said: A. Well, he made the statement to me one day in the hotel — I can't give the date, — it was in the fall. I come back from the east on the 19th of November, and it was after that, in the fall of 1924; we had a conversation there in regard to some checks that he said had been cashed by the First National Bank, that he never had drawn; and I asked him who he supposed would do anything of that kind, and if he thought they were forged, and he said he was sure they was, from the fact that he hadn't wrote these checks. I asked him what he was going to do, and he didn't say what he intended to do, but he said that he had got to make some disposition of his property, and I asked him what he intended to do, to make a will or let it go that way or not, and he said he was going to make a will, and I asked him who, in this country, that he had, and he said some nieces and brothers, and also a daughter in The Dalles, Oregon.

"Q. And did he say anything about leaving any money to the daughter? A. He did.

"Q. What did he say about that? A. He said he wanted to leave her somthing, and he was going to make arrangements under the will to leave her something.

"Q. What, if anything, did he say about his wife? A. Well, I asked him where the folks was; that is the way he come to tell me about the girl being in The Dalles, he said her mother was dead, and that the girl was living in The Dalles.

"Q. That the girl was what? A. Living in The Dalles.

"Q. Was that all he said? Well I couldn't state; there was other conversation about his property down in Tillamook and about some property here in Portland. He said he had some ranches.

"Q. What was your business in Portland, Mr. Doud? A. At the present time?

"Q. Yes. A. I am in the mining business; I am a mining engineer, and I make my home here in the winter sometimes.

"Q. What did you do when you first came out here? A. The first thing I done in Portland was to build some houses here, — contractor and builder.

"Q. You have lived in Portland all of these years? A. I have known Portland since May, 1882."

Mr. S.K. Watson testified, among other matters, that in 1923 he was in The Dalles and that plaintiff, who was conducting a fruit farm near that place, asked him to take a box of apples to her father, referring to Mr. Brigham, and told him where to find him; that he took the fruit to Mr. Brigham and continued his testimony as follows:

"And he said 'Sit down,' and I sat down and had quite a long talk with him. Of course, he was an old man, and he asked me a good many questions: How long I had been in the country, where I was from, and my business, and wanted to know if I hadn't heard of him, and had quite a long conversation with him; and I delivered the fruit, and he commented on Mrs. Wadsworth, his daughter, sending him fruit at different times, and spoke about his little girl, and spoke about her mother; and went ahead and asked me all about the place up there, and how she was getting along; and I told him that she was out there working and had been working, and I thought was going to make a go of the place, and he said he hoped so. He said it would be a good home for her, and went ahead and told me that he had advanced the mother money, or taken care of a mortgage on that property at The Dalles, so that Mrs. Wadsworth's mother, and he says 'My Daughter' would have a home, and he said, 'It is a nice place up there,' or words to that effect. I don't just remember whether it was a mortgage, or whether it was the initial money that bought this property, but it was money he had advanced to Mrs. Wadsworth's mother; and we talked along awhile, and he wanted to know if I made many trips up to The Dalles, and I said, 'I have to go through The Dalles quite frequently in going to Eastern Oregon,' and he said, 'Sometime when you are going up, I would be pleased to ride up with you and have a talk with you.' I said, 'All right'; and there was a time come along that I called him up to go and told him I would be over in the hotel later in the evening, and I thought I would drive over that afternoon to The Dalles. He said, 'I'll have my grip packed and ready.' I was representing the Oregon Livestock Association, and Mr. Ruby is president, and I had been associated with them for some time, and there was a change come there in the office some way or another, so I didn't go, and I called him up in the evening and told him I wasn't going. He said, 'All right, sometime again, let me know, and I'll go up to see my daughter.' That was about the sum and substance of my conversation with Mr. Brigham.

"Q. Did he, by his conversation, indicate any feeling or regard for the daughter, or for the mother? A. Oh, yes; when he said that he advanced the money to procure the place there, or take care of the loan on the place, it was for the purpose so that Mrs. Wadsworth's mother and her would have a home."

While there is evidence mostly by relatives of declarations on the part of Brigham that Mrs. Wadsworth was not his daughter, we think the evidence largely preponderates in favor of plaintiff on this branch of the case, and we are prepared to find and do find that she is the daughter of John R. Brigham and Mrs. Emily Liddy-Brigham as she sometimes called herself. But the fact that she was Brigham's daughter, and the fact that she was his daughter by reason of intercourse with Emily E. Liddy, does not establish plaintiff's right to inherit in this case. Her right, if she has any, depends upon the construction of Chapter 269, Laws of 1925, which chapter, including the title, is as follows:

"An Act to legitimatize certain marriages and children the issue thereof.

"Be it Enacted by the People of the State of Oregon:

"Section 1. In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage."

The whole case hinges upon the construction of this chapter. It has been treated to some extent by counsel for the respondents as simply re-enacting the doctrine of common-law marriage, but it differs from it in many particulars. To constitute a common-law marriage there must be, first, an agreement between the parties that they become man and wife and that they hold themselves out to the world as such, and second, there must be cohabitation subsequent to the agreement: Huard v. McTeigh, 113 Or. 279 ( 232 P. 658, 39 A.L.R. 528), and cases therein cited. The statute of 1925 requires all this, as will be seen, and something more. In a common-law marriage the birth of issue is not required; while in the act of 1925, supra, the birth of issue and its living existence at the death of the supposed parent must concur before there can be any inheritance, and the parties must have cohabited together as man and wife for at least a year previous to the birth of such issue. So, the statute cannot be said to be a mere restoration of the practice of common-law marriage which had reference to the status of the parties to the supposed contract rather than to its result upon the issue; while, on the contrary, the statute under consideration seems to make the effect of the supposed relation between the parties to look rather to the welfare of the children born of such relation than to the interest of the contracting parties. This statute is a radical departure from the common-law idea, as a child born out of wedlock was regarded with a cruelty which would not be a credit to modern jurisprudence. Such a child was designated as nullius filius or nobody's child; was incapable of inheritance, and the sins of the parents, instead of being visited upon them, were visited upon the unfortunate issue of their breach of the ordinary covenants of marriage. We take it that this statute was enacted chiefly for the protection of such unfortunate children from the consequences of the sins of their parents rather than for the protection of the parents themselves from the consequences of their own misdoings. It has been well settled in this state in the case of Huard v. McTeigh, supra, that common-law marriages cannot exist in this state and we take it that it was not the intent of this statute to restore common-law marriage to the condition of legitimacy, but rather to protect the issue of irregular and illegitimate cohabitation from the consequences which would otherwise accompany it. The requirement that the parties should have lived together and cohabited as man and wife has no real significance as affecting the legitimacy of their relation. In fact, the old indictments for lewd cohabitation usually charged that the parties, not being married to each other, openly and notoriously cohabited together as man and wife, which simply signifies that they lived in each other's company not casually or infrequently, but commonly and frequently as man and wife and had sexual relations together; and this, we think, is shown by the testimony in this case.

We dismiss from consideration the theory of the plaintiff that there was a ceremonial marriage in California. It is altogether possible and indeed very probable that to excuse their apparent relations to their child, they may have told her that they had been married in California, which their subsequent conduct indicates was strongly the reverse. We are unable to accept that theory and the jury clearly and plainly rejected it. The testimony heretofore quoted, as well as other testimony in the case, we think, preponderates in favor of the theory that they were living together by agreement as husband and wife and this continued until the decedent, who appears to have been rather loose in his sexual relations, became enamored of another woman and left plaintiff and eloped with his second sweetheart, which conduct she requited by inflicting upon him a severe thrashing upon his return to Portland. The fact that succeeding this episode plaintiff's mother brought an action for seduction against Brigham can have no legal effect upon plaintiff's status in this proceeding. Finding herself deserted, it was natural for her to seek the assistance of an attorney who would probably advise her that common-law marriages did not exist at that time and that her relations with Brigham were in the eyes of the law not only illegal but perhaps criminal, and that her only hope for obtaining redress lay in an action for seduction. In fact, until the passing of the statute of 1925, supra, there was no redress for mother or child. Under these circumstances she married another man, and considering the fact, that Brigham later and in a repentant mood was willing to dole out a little money now and then to assist her and her child, furnished to her an ample reason for not wishing to attempt to compel him to do more, and to be willing to maintain silence as to her past relations with him. The mother of plaintiff died without hope for that redress which this statute has given the child.

The evidence indicates that something over a year prior to the birth of plaintiff Mrs. Liddy's husband died and that thereafter she entered into sexual relations with the deceased; that she either rented from him or he provided a house which was used by her as an assignation house and frequented by him; that she returned to him of nights, slept with him, bringing him the wages from the house over which she presided, and that the house was conducted in pursuance of a common purpose by both of them. Outside of this, there is not a syllable of testimony of her having had illicit relations with any other person than the deceased, and, while she was engaged in an immoral business, she was at least physically true to her relations to him until he became enamored of another woman. How much influence he may have exerted toward leading her to take up the immoral business and by which he at least to some extent profited does not appear, but that she was a widow and presumably not in a condition to enter into such business without assistance seems very probable.

A point is raised and very ably argued by counsel for respondents as to whether, conceding for the purposes of argument that plaintiff has proven herself the legitimatized child of decedent by virtue of the act of 1925, supra, she does not fall within the terms of the following clause of the will:

"In the event that any person shall contest this will, or in the event that any person claiming to be a legal heir of mine shall legally establish such claim, I give and bequeath unto him or her the sum of $5.00 in cash, and revoke any other devise or bequest heretofore made to him or her, in the event any such has been made."

It is argued that under this clause the plaintiff in any event has been "otherwise provided for" within the meaning of the act of Section 10101, Or. L. We are of the opinion that as applied to this case or as to any case where the prosecution of the suit is in good faith, such a provision is void as against public policy. If, as we here hold, the plaintiff has a legitimate claim to the whole or any part of the estate of decedent, it would seem a mockery to say that in case she should establish such claim she should be cut off with what amounts to a mere nominal sum, and that after spending perhaps hundreds of dollars to establish the fact that she is the legitimate daughter of decedent, she must be content with the unsubstantial sum of $5. This question has been thoroughly considered in Roots v. Knox, 107 Or. 96 ( 212 P. 469, 213 P. 1013), in a carefully written opinion by Mr. Justice BROWN, in which it is held, among other matters, that the intention of the testator to omit a child from the benefit of its inheritance must be determined from the will itself. This branch of the subject will be considered at length, but here attention is called to his quotation from Boman v. Boman, 49 Fed. 329, as follows:

"The fact that the children are not named or alluded to in such a manner as to affirmatively show that they were in the testator's mind will furnish conclusive evidence that they were forgotten." Citing Wetherall v. Harris, 51 Mo. 68; Gerrish v. Gerrish, 8 Or. 351 (34 Am. Rep. 585).

The opinion of Mr. Justice BROWN goes thoroughly into the subject and is conclusive as to the point that the intent to disinherit a child of the testator must be deduced from the will itself and not from extrinsic evidence.

From the same case Mr. Justice BROWN quotes as follows:

"The terms of the will, in order to show the intent of a testator to remember his children, or to make provision for them, should, under the statute, be clear, specific, definite and certain. The presumptions of the law are all in favor of the children. These presumptions, in order to disinherit them, or to cut them off with a shilling or other nominal sum, can only be overcome by the use of words plainly indicating that the testator had his children in mind at the time he made his will. This must appear, either by express mention, or by necessary implication from the face of the will itself."

The words of the will must show that the testator named or "provided for" the children and must be certain. It is not a matter of guesswork or presumption.

In Thomas v. Black, 113 Mo. 66, 69 ( 20 S.W. 657), the court said:

"It must appear on the face of the will that the testator remembered them, and, where they are neither expressly named nor alluded to as to show affirmatively that they were in the testator's mind, such presumption becomes conclusive."

In McCoy v. Bradbury, 290 Mo. 650, 659 ( 235 S.W. 1047, 1050), the court in speaking of a statute containing the identical words of the Oregon statute, namely, the words, "provided for," said:

"A gift by implication will not be inferred from mere silence, or from extrinsic facts; it must be founded on expressions in the will itself. A testamentary intention not found in the will cannot be incorporated therein by extrinsic evidence and an implication then based on that."

And again, in Pounds v. Dale, 48 Mo. 270, the court said:

"In considering the will under consideration, the only question to be considered is whether there is anything in the will that rebuts the presumption that Mrs. Pound was forgotten, which presumption arises from the fact that she was not named or 'provided for' in the will."

In Roots v. Knox, 107 Or. 96 ( 212 P. 469, 213 P. 1013), it is stated at page 105, that the Washington statute is identical with the Oregon statute. In the case of Bower v. Bower, 5 Wn. 225 ( 31 P. 598), the will provided that all of the property of the testator was devised "to his wife and her heirs forever." It was claimed that the mention of heirs "provided for" the children, but the Supreme Court of Washington held otherwise. The language of the court, which has been approved in the foregoing opinion of Mr. Justice BROWN, is as follows:

"The positive provisions of our statutes are that the children must be named or 'provided for' in the will. What is meant by the term, 'provided for' as so used? In our opinion it refers to some beneficial legal provision, and we are unable to agree with the contention of the respondent that such children can be said to have been 'provided for' by an absolute devise to another, even although the testator thought that the interest of the children would better be subserved by such devise than by one directly to them. The words 'provided for' as used in said section must be held to have a more definite meaning than that contended for by respondent, and we think that no will can be sustained upon the ground that provision has been made for the children, when the only attempt to provide for them has been by an absolute devise to a person other than said children. In the case at bar, then, the children are neither named nor provided for in the will, and under the express terms of our statute we think it must be held ineffectual as to them."

In re Barker's Estate, 5 Wn. 390 ( 31 P. 976), in considering the same statute, the same result was arrived at. The will in that case provided that the testator gave all her property "to her well beloved husband, to the exclusion of everyone else who may or might be entitled to the same, and to him and his heirs and assigns forever." It was claimed in this case that the expression "to the exclusion of everyone else who may or might be entitled to the same" named the children and excluded them. The Supreme Court of Washington, following Bower v. Bower, supra, refused to follow this line of reasoning, and said:

"There must be some substantial provision for the children of which they can legally avail themselves, or else there must be an actual naming of such children in the will, or the same will be ineffectual as against such children."

In Purdy v. Davis, 13 Wn. 164 ( 42 P. 520), where the doctrines of Bower v. Bower and In re Barker's Estate, supra, were followed, the children were expressly named and "provided for" by way of a contingency, or a contingent remainder, but the Supreme Court held that that was not sufficient. The words of the will are as follows:

"Gift to Percival A. Purdy, and 'if the said Percival A. Purdy (appellant) should marry again after my demise all my property, both real and personal is to belong to any one of my children that may be born to me before my demise.'"

At the time of the execution of this will a child was ten days old and thereafter the testatrix died.

The Supreme Court of Washington, regarding this contingent provision for the children, quoting with approval from the case of In re Barker's Estate, supra, said:

"Under our statute there must be some substantial provision for the children of which they can legally avail themselves or else there must be an actual naming of such children in the will or the same will be ineffectual as against such children."

The clause of the Brigham will, which it is claimed names the children, reads as follows:

"In the event that any person shall contest this will, or in the event that any person claiming to be a legal heir of mine shall legally establish such claim, I give and bequeath unto him or her the sum of five dollars in cash, and revoke any other devise or bequest heretofore made to him or her, in the event any such has been made."

It is to be noted that the plaintiff is not named in this paragraph. She is not included in the word "heirs." See Neal v. Davis, 53 Or. 423, 430 ( 90 P. 69, 101 P. 212), where it was expressly held that the word "heirs" did not name or "provide for" the children involved in that case. The Supreme Court of Oregon said:

"The term 'heirs at law,' however, in its general definition includes many others (besides children). It is not limited to children. It may be used, and is often used, in cases where there are no children. It includes parents, brothers, sisters, etc. Who can tell by reading this will what particular heirs were in the mind of the testator at the time he signed the will? Does it clearly appear that it was his intention to provide for the children? Is it manifest upon the face of the will that his children were not overlooked or forgotten? Certainly not. The test there used may be employed in this case, and the same answer must necessarily be returned to the inquiry."

It follows that the word "heirs" in the third paragraph of the will does not affect the rights of the plaintiff herein. Next, the words "in the event that any person shall contest this will" may include the entire world, and does not name the plaintiff either expressly, or by implication, or show that the testator had her in mind. Reading the whole will, which must be considered together, we find that John R. Brigham recites in the very first sentence of the will that he is an unmarried man. Now, if he was an unmarried man, obviously, he did not have any children in mind, and the very statement that he said he was unmarried shows that he did not have any children in mind, and he probably regarded the plaintiff's status as foreclosed by her mother's subsequent marriage without a divorce. Next, if she is not named in this paragraph, is she "provided for" in this paragraph? It is hard to see how she could be "provided for" in the said paragraph if she is not named therein. While a testator has a right to disinherit his children, or expressly give them a nominal sum, when he fails to do that and does not expressly disinherit the children or expressly give them a nominal sum, in order to exclude the children, under these circumstances, from inheriting under the statute, they must be actually and substantially "provided for."

Paragraph 3 does not "provide for" the plaintiff herein. In fact, it has no provision for her at all. In order for her to take under this paragraph, assuming that she came within the purview thereof, she must perform a condition precedent before she is entitled to the sum of $5. She must come to court and incur the tremendous expense of proving that she is the daughter of John R. Brigham, and after she has expended several hundred dollars to establish that proposition, then the provision, that is made for her in the will, is that she shall receive $5, assuming that she is named therein.

Now, the words "provided for" never had any such meaning as the authorities show. We again refer to the case of Purdy v. Davis, supra, where the doctrine of Bower v. Bower, followed in Oregon, is recognized, and in which the rule is stated as follows:

"Under our statute there must be some substantial provision for the children of which they can legally avail themselves or else there must be an actual naming of such children in the will or the same will be ineffectual as against such children." Re Barker's Estate, 5 Wn. 390 ( 31 P. 976).

In Rowe v. Rowe, 120 Iowa, 17 ( 94 N.W. 258), under the same statute as ours, the testator devised all his property to his wife with full management and control for her use, comfort and support as long as she was alive, and at her death the remainder to their children. It was held that the widow took a life estate and that the disposition of the remainder did not constitute a substantial support for the children. The language of the opinion is very appropriate, and reads as follows:

"Appellant's counsel, admitting the rules thus far announced, contend that they do not apply when there has been a recognition of the child, and substantial provision made for it in the will. * * The widow has but a life estate under the will of her former husband, with limited power of disposition for her use, comfort, and support so long as she shall live. Under this power she might sell the entire property during her life for support, and thus deprive the child of any right to or interest therein. Indeed, all the child is given is a remainder after a life estate, and this remainder is subject to disposition under the power given in the will. Is this a substantial provision for the child? We think not."

In Meyers v. Watson, 234 Mo. 286 ( 136 S.W. 236), there was a gift of $10 to James Carey "my son-in-law," whose wife, the daughter of the testator, was dead at the time. This was not a provision for the grandchildren, the court saying:

"We affirm the judgment of the court below. The plaintiffs are neither named, nor provided for in the will. * * The failure to name these children of the testator's deceased daughter raises the presumption that they were unintentionally omitted. * * Had the testator given to the son-in-law a fair proportion of the estate, it might be held that this provision was intended for the grandchildren, and that, consequently they were in the testator's mind, and this because it would not be likely that the testator intended to benefit the son-in-law alone. * * The plaintiffs were not mentioned in the will. We find nothing in the instrument to rebut the presumption that they were unintentionally omitted."

Grace v. Hildebrant, 110 Okla. 181 ( 237 P. 98), is a case almost on all-fours with the case at bar. The fourth paragraph in the will reads as follows:

"If there is any person who would be entitled to share in my estate under the law then to each and every person I give and bequeath the sum of one dollar."

The Supreme Court of Oklahoma said:

"If it could be said that said fourth paragraph refers to a class including defendant, there is no substantial devise to that class or to the defendant by the nominal bequest of one dollar. As a matter of law, said will was inoperative as to defendant. * * Under said statute and similar statutes the testator must either name the children or its legal representative or make some provision for the pretermitted person."

There is in the instant case no gift made direct. The $5 is upon condition, and unless that condition precedent is met by a contest of the will, the plaintiff is not provided for. No such construction of these statutes has ever been made in any court. The only way that the testator could defeat the rights of the plaintiff would be expressly to name her in a will or expressly to disinherit her. In the absence of doing these things, unless she is substantially "provided for" in a will, she takes under the statute. Giving her $5, if she should succeed in proving her legitimacy, is so incongruous that no court could reasonably hold that she was "provided for" within the meaning of the statute by such a provision. It is a case where she must die to win. Furthermore, this provision being in terrorem, it is void.

The latest case found on this subject is In re Keenan, 188 Wis. 163 ( 205 N.W. 1001, 42 A.L.R. 836). The headnote reflects the substance of the opinion and is as follows:

"It is contrary to public policy to require a litigant to forfeit a substantial sum in case he is not successful in the prosecution in court of a bona fide claim or right, such as the contesting of the probate of a will, where the constitution provides that every person is entitled to a certain remedy in the law for all wrongs which he may receive, and should obtain justice freely and without being compelled to purchase it, completely and without denial, conformably to the laws."

Our Constitution contains substantially the same provision as the one alluded to above. In the present case, the testator has gone further and provides not only that there shall be a forfeiture in case of failure to establish the claim, but also in case that such claim is actually established.

In several states, under different statutes from ours, the holding has been as contended for by the respondents. These cases follow the case of Cooke v. Turner, 15 Mees. W. 727, and other English cases follow this, but in later English cases the rule has been otherwise.

In Powell v. Morgan, 2 Vern. 90, the court said:

"There was probalis causa litigandi, and it was not a forfeiture of the legacy."

In Morris v. Borroughs, 1 Atk. 404, it is said:

"There was a provision made by the will that any legatee controverting the disposition the testator had thereby made of his estate, should forfeit his legacy; this was held clearly and to be in terrorem only, and that no such forfeiture could be incurred by contesting any disputable matter in a court of justice."

In Loyd v. Spillett, 3 P. Wms. 344, it was held that legatees contesting the validity of the will were not to be deprived of their legacies because of such contest. The same rule was held in Smithsonian Inst. v. Meech, 169 U.S. 413 ( 42 L.Ed. 793, 18 Sup. Ct. Rep. 396, see, also, Rose's U.S. Notes), and the case of Loyd v. Spillett, supra, was approved.

The case of In re Keenan, supra, is reprinted in 42 A.L.R. 836, and contains an exhaustive note on this subject in which the conclusion is reached that such a provision as that above referred to is void as to a party having claims in good faith, and we so hold.

Taking the whole testimony together, we are of the opinion that these parties lived together and treated each other as husband and wife for at least a year before and several years after the plaintiff in this suit was born, but John R. Brigham having to a great extent lost his affection for plaintiff's mother, saw fit to break off the connection and elope with another woman. Later, having become rich, or at least comparatively rich, he sought to be respectable by denying these relations and denying the daughter he had begotten and bred.

A number of citizens were called upon and testified that they had esteemed him a bachelor, and they were no doubt correct as the parties engaged in the business being conducted in the house of deceased were not proclaiming their relations to the better class in the community and no doubt a good many citizens of Portland could have been called who would have testified that they had known John R. Brigham in a business way, and to some extent in a social way, and that they had always supposed him to be a bachelor. This is mere negative testimony and entitled to small weight.

The fact that Mrs. Liddy-Brigham, after deceased deserted her for another woman, married, and on the death of that husband married still another, offers a very plausible argument for defendant, but it is easily explained. In view of the fact that there had been no formal marriage ceremony, she probably considered that it was as easy to exercise the same right to get rid of a husband, without legal proceedings, as to obtain one, without going through the ordinary formalities, and therefore treated the desertion as sort of a common-law divorce. At any rate, we hear of no imputation of her ever associating with other men in a sexual way excepting by the sanction of a marriage ceremony. It is to be remembered that these people do not seem to have been schooled in the ordinary precepts of morality, and the same standards, which would apply to an educated and refined woman, cannot well be held to apply to this woman on whom the conventional relations of society would naturally sit very lightly.

We attach great weight to the verdict of the jury in this case. It is true it is in its nature perhaps only advisory and not conclusive, but it is also treated with great consideration by the courts. As said in DeLashmutt Oatman v. Everson, 7 Or. 212, and Swegle v. Wells, 7 Or. 222, such a verdict should not be set aside where there is substantial evidence to support it.

We do not question the learned judge's capacity to pass upon the law, or the capacity of any judge to pass upon the law, but usually in cases of this kind the average intelligent citizen is as capable of passing upon the facts as the average intelligent judge, and ten jurymen called upon to determine the pure question of fact have found such facts as entitled plaintiff in this case to a decree in her favor. Taking the whole testimony into consideration, and further taking into consideration the fact that ten good citizens have found the facts in favor of plaintiff, we are of the opinion that this case should be reversed and plaintiff granted the relief prayed for in her petition, and it is so ordered. REVERSED AND DECREE ENTERED.

McBRIDE, J.

Former opinion adhered to April 24, 1928. ON REHEARING. ( 266 P. 875.)

McBRIDE, J.

This case comes again before the Supreme Court on rehearing. It was formerly held by this court in the original opinion following the verdict of the jury in the lower court that Mercedes Wadsworth was the daughter of John R. Brigham and that her mother and father had lived together as provided by Chapter 269, General Laws of 1925, which reads as follows:

"In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage."

At that time the entire record received the full consideration of the Supreme Court including that of the late lamented Chief Justice BURNETT, and the court found no difficulty in arriving at the conclusion that the plaintiff was entitled to the judgment of this court, and that she had amply proved all the facts required.

In the petition for rehearing reliance was mainly placed on the proposition that the statute was not retrospective in its nature, and that the parents of the plaintiff did not live together as husband and wife in the manner provided for.

At the outset we wish to lay down the following general rule for the construction of remedial statutes:

"In accordance with the general rule that remedial statutes should be given a liberal construction, they will be freely construed to have a retrospective operation whenever such seems to have been the intention of the legislature, unless such construction would impair the validity of contracts, disturb vested rights, or create new obligations. This principle has been applied to statutes for the prevention of fraud, legitimating the issue of void marriages." 36 Cyc. 1209.

The general construction of such statutes is retrospective. In 7 C.J. 948, it is said:

"Statutes intended to legitimate the issue of a marriage otherwise void are remedial in their nature and may properly be applied retrospectively."

A very leading case is Goshen v. Stonington, 4 Conn. 209, 221 (10 Am. Dec. 121). State v. Adams, 65 N.C. 537; Andrews v. Page, 50 Tenn. (3 Heisk.) 653.

In Goshen v. Stonington, supra, the court said:

"Lastly, the defendants have insisted (and on this objection the principal stress has been laid), that the law of May, 1820, being retrospective, and in violation of vested rights, it is the duty of the court to pronounce it void. The retrospection of the act is indisputable, and equally so is its purpose to change the legal rights of the litigating parties. Whether in so doing this, there has been injustice, will be an inquiry in a subsequent part of my opinion. It is universally admitted and unsusceptible of dispute, that there may be retrospective laws impairing vested rights, which are unjust, neither according with sound legislation, nor the fundamental principles 'of the social compact.' If, for example, the legislature should enact a law, without any assignable reason, taking from A his estate, and giving it to B the injustice would be flagrant, and the act would produce a sensation of universal insecurity. On the other hand, laws of a retrospective nature, affecting the rights of individuals, not adverse to equitable principles, and highly promotive of the general good, have often been passed, and as often approved. In the case before us, the defendants have expressly conceded, that the law in question is valid, so far as respects the persons de facto married, and their issue. But, in that event, would it not have been a retrospective operation on vested rights? The man and woman were unmarried, notwithstanding the formal ceremony which passed between them, and free, in point of law, to live in celibacy, or contract matrimony with any person at pleasure. It is a strong exercise of power to compel two persons to marry without their consent; and a palpable perversion of strict legal right. At the same time, the retrospective law, thus far directly operating on vested rights, is admitted to be unquestionably valid, because it is manifestly just."

This language is also quoted in Cooley's Constitutional Limitations (7 ed.), page 533.

Such statutes have been construed to apply to children whose parents were dead at the time of the passage of the act: Gregley v. Jackson, 38 Ark. 487; Wallace v. Godfrey, 42 Fed. 812; Jackson v. Lervey, 5 Cow. (N.Y.) 403.

In Jackson v. Lervey, 5 Cow. (N.Y.) 397, 403, the court said:

"The act declares, that all marriages contracted, or which may thereafter be contracted, wherein one of the parties was, or might be slaves, shall be considered equally valid as though the parties thereunto were free, and the child or children of such marriages shall be deemed legitimate. The words are general, and extend to all marriages. Why should it be restricted to cases where the parties were then living? One object was to render the children legitimate. What superior claims had the children of parents then living to the interference of the legislature, to those whose parents were dead when the statute was enacted? I perceive none. The words of the act are sufficiently broad to include both; and ought so to be construed to effectuate the intent. If I am right in this construction, then the child of the soldier was legitimate, and became the heir of the father."

In Andrews v. Page, 50 Tenn. (3 Heisk.) 668, the court said:

"The act of May 26, 1866, § 5, declares, 'that all free persons of color, who were living together as husband and wife, in this state, while in a state of slavery, are hereby declared to be man and wife, and their children legitimately entitled to an inheritance in any property heretofore acquired, or that may be hereafter acquired, by said parents, to as full an extent as white children are entitled under existing laws of the state. An act similar in principle to this, had been passed some years before, to validate marriages between white persons who had been married under license carelessly issued in blank by the clerks, and containing nothing beyond their own signatures. See Acts 1849-50, p. 397."

"The power to legitimate children has been frequently exercised by the legislature, at the instance of the father, and was delegated to the circuit and county courts by the act of 1805, c. 2 Car. Nic. 499. It may be still exercised under the code 3640, 3643. These statutes, when not interfering with vested rights, have always been permitted to have a retrospective operation. See Cooley on Lim. 372, 373, 360, 361."

"The act of 1866, having been passed to ratify marriages, good during the institution of slavery, by the prevailing usage of this state, and to create a right of inheritance conformable to such usage, and the changed condition of the slave, was in furtherance of good morals, and of the best interests of the state; and where no other rights have intervened, was eminently constitutional and proper."

That retrospective legislation is not strange in Oregon is evidenced by the many statutes found in the index of the Oregon Code making valid many defects in prior proceedings, such as divorce, defects in conveyances of land, marriages and such other matters. In McCalla v. Bane, 45 Fed. 828, the Oregon act, Section 10128, making illegitimates of the mother legitimate, was construed retrospectively and held valid. See Section 723 and Section 2563, Or. L., and Wallace v. McDaniel, 59 Or. 378, 385 ( 117 P. 314, L.R.A. 1916C, 744).

It was found after the decision of the Supreme Court in Huard v. McTeigh, 113 Or. 279 ( 232 P. 658, 39 A.L.R. 528), declaring common-law marriages invalid, that there were many children born in the State of Oregon who without some curative legislation would be considered as bastards both in fact and in law, and so to meet this exigency the aforesaid statute was enacted.

The primary purpose of the act was to legitimatize ill-begotten children, and the provision that the parents should be considered married if the children were living as a result of the relations mentioned in the statute was merely incidental to this great purpose. The purpose of the act was not to restore common-law marriages in Oregon, but to legitimatize the children begotten of illicit relations, provided the parents lived together for a sufficient length of time to avoid any presumption that the claim of the child might not be well founded.

The evil to be overcome by the police power of the state was the fact that there were illegitimate children born who would not inherit from the father and who had no name. It was this evil that gave rise to the legislation and not any defects in the marriage system of Oregon. Therefore, in construing this statute we must look at the evil which the legislature sought to correct and not go out of our way to defeat its purpose by any fancied or strained ideas that the ill-gotten children must prove all the elements of a common-law marriage as a condition precedent to establish legitimacy. The legislature did not so provide in the statute and it is our function to follow what the legislature declared to be the law rather than fritter it away with imagined technicalities and thus destroy its beneficial purpose.

And as the validity of Chapter 269, Laws of 1925, has been challenged under the state laws, we will first take up the question of its validity.

It is always a delicate matter to declare a statute duly enacted by the legislature unconstitutional and unless the conflict between the Constitution and the statute is clear the court will not declare it void. This statute was passed under the police power of the state. Such power is exclusively vested in the legislature and covers all laws relating to the public health, morals and welfare. It is only when fundamental rights which are beyond the scope of the police power are interfered with that the court under the Constitution protects such rights from the excess of power. But no such case arises here, for it is too plain for argument that the statute is within the scope of the police power being merely a curative statute enacted for the humane and laudable purpose of legitimatizing the offspring of parents whose relations were irregular and not sanctioned by law. Such statutes are favored in law and are liberally construed to effectuate the purpose of their enactment. And it is a well-known rule of statutory construction that if a statute is capable of two meanings, one which would uphold it and the other deny it, the court will uphold its validity: Texas v. Eastern Texas R. Co., 258 U.S. 204 ( 66 L.Ed. 566, 42 Sup. Ct. Rep. 281); United States v. Delaware, etc., 213 U.S. 367 ( 53 L.Ed. 836, 29 Sup. Ct. Rep. 527.) A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts on that score: Panama Ry. Co. v. Johnson, 264 U.S. 375 ( 68 L.Ed. 748, 44 Sup. Ct. Rep. 391).

In construing a state statute the Supreme Court of a state cannot usurp the power of legislation. Under our system of laws no department of the government can transcend the law of its creation. It is for the legislature to amend and make laws and for the courts to construe them. The court cannot usurp the functions of the legislature any more than the legislature can usurp the functions of the court.

And courts are bound to follow the plain words of a statute as to which there is no room for construction regardless of the consequences: Commissioner of Immigration v. Gottleib, 265 U.S. 310 ( 68 L.Ed. 1031, 44 Sup. Ct. Rep. 528).

But it is said that the legislature has no power to marry persons against their will. That is true. But this statute does not do that. It gives effect to the will of the parties. If a man and woman voluntarily live together as husband and wife, either in appearance or reality, for the statutory period of one year, and children are born as a result of such relation and other rights have not intervened, the legislature in the exercise of its police power has only placed on the conduct of the parties what they themselves consented to and invited; and the police power in the exercise of a wise and humane policy will not allow such parents to bastardize their innocent offspring out of any refined regard for their supposed rights which they had forfeited by their illicit relations, and this law is well settled, and by the highest authority. See Cooley's Constitutional Limitations (8 ed.), p. 777.

But even if this were not true and it was the law that the state in the exercise of its police power could not in any event declare parties married who had by their illicit relations brought innocent children into the world under the cloud of bastardy in order to give such children a name, nevertheless we would hold that the plaintiff was still entitled to recover in this case under the well-established rule that when the different parts of a statute are separable, one part may stand without affecting the validity of the other part. This rule has been recognized in Oregon even in a criminal statute in the late case of State v. Ring, 122 Or. 644 ( 259 P. 780), recently decided, where it was held by this court, speaking through Mr. Justice COSHOW, that the conviction of the defendant in that case could be upheld although it was admitted that Section 2189, Or. L., was in conflict with the federal law, and if inseparable was void, but, in upholding the conviction, Mr. Justice COSHOW said with the approval of the court:

"It would not be helpful to the profession to restate the reasons assigned, both by this court and the United States Supreme Court, for sustaining the validity of such legislation as said section 2189 Or. L. * * The statute is not uncertain. A pilot of ordinary intelligence can readily determine from section 2189 Or. L., and section 4444 U.S. Revised Statutes, when he will require a state license and when a government license. * * So much of said section 2189 as conflicts with title 52 c. 1 Rev. Stat. (46 U.S.C.A., sec. 361 et seq.), (U.S. Comp. St., sec. 8151 et seq.) is dormant and unenforceable, but is not unconstitutional."

Further, in Pollock v. Farmers' Loan Trust Co., 158 U.S. 601, at page 635 ( 39 L.Ed. 1108, 15 Sup. Ct. Rep. 912), Mr. Chief Justice FULLER said:

"It is elementary that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected."

So that even if the legislative marriage of the parties, voluntarily engaging in illicit intercourse, and begetting children as a result thereof, was a matter beyond the police power of the state to create, such lack of power would not prevent the other valid part of the statute from standing on its own ground, for it is a proposition too plain for argument that the legislature can declare the children of illegitimate relations legitimate without marrying the parents as a condition precedent. See McCalla v. Bane, 45 Fed. 828. One thing does not depend upon the other. Therefore the marriage of the parents and the legitimatizing of the children are two totally independent things. We advance this consideration for the purpose of showing that the statute is valid in any event as to its main object. Both the father and mother of this plaintiff are dead and whether they became married by the statute or not under these circumstances would not be decisive, or make any difference. But we do not choose to put our decision on this ground, as we have no desire to attempt to fritter away any of the legitimate powers of the legislature of this state by any forced or strained construction of statutes passed in the exercise of the police power. We hold, therefore, the statute as a whole is valid.

And so we will take up the proposition advanced by the defendants that the plaintiff did not prove that her parents cohabited in the State of Oregon as husband and wife for over one year. This seems to be the backbone of the defendants' case. It is not contended that Mercedes Wadsworth is not the daughter of John R. Brigham, nor is it denied that she was born in 1879; nor is it denied that her mother was a widow at the time of her birth; neither is it denied that her mother had been a widow for a period of approximately over eleven months immediately preceding the birth of this plaintiff, and during her relations with John R. Brigham she remained a widow for several years so far as a formal marriage ceremony was concerned up until 1883. That there were intimate relations between John R. Brigham and the plaintiff's mother is not denied. As a matter of fact, practically every witness called by both the plaintiff and defendants admitted that these relations continued and existed during the period of time preceding the plaintiff's birth and for several years thereafter. So that every fact connected with the birth of this plaintiff and her early infancy and the relations of her parents is proved beyond question, except the proposition is disputed that the parties in the execution of these relations "cohabited as husband and wife."

In determining the meaning of the words in the statute "cohabiting as husband and wife," we find in looking at the authorities that these words are capable of different meanings. In some cases the words "cohabiting as husband and wife" are held to mean that, if the parties live together in such a manner as to appear to be living as husband and wife, the requirements of the statute are satisfied. In other cases, and generally where common-law marriages are only involved, the meaning attributed to the words is that the parties must be matrimonially inclined.

In this case we held in the former opinion that, if a man and a woman lived together during the statutory period and children were born to such illicit relation and were living, and that such parents had cohabited in the manner of husband and wife regardless of their formal intent, the requirements of the statute were satisfied and the children were made legitimate. We think that this was the intention of the legislature, considering that the purpose of the statute was to legitimatize the children of such illicit relations, and that the marriage of the parents in such cases was only incidental and could only come into being in the event that children were living and in no other case. It would seem that loading this statute with unnecessary refinements is subversive of the intention of the legislature, and that, if a child is born as a result of illicit relations continued during the statutory period, the court will not be required to pry into the secret psychological processes existing in the minds of the parents at the time; but that the statute is satisfied if its actual requirements were proved. We are not prepared to recede from the position that we took in our former decision regarding the meaning of the words "living together as husband and wife."

We might say in this case, however, that the evidence did prove that the parties lived together as husband and wife even in the most formal sense, and that they fully intended to live together as husband and wife in the common-law sense is so declared by evidence which is uncontradicted. John R. Brigham, the father of the plaintiff, as the record in this case conclusively shows and as the jury found, admitted both to the plaintiff and Mrs. Britten and to his friend and fellow townsman, John Doud, that he was a married man and this plaintiff was his daughter. Now it is too plain for argument that when a man himself admits the nature of his illicit relations, there is no room for speculating or guessing that these relations were of some other nature than as described by him. So far as putting the stamp of a common-law marriage on his relations with the plaintiff's mother in this case, John R. Brigham condemned himself out of his own mouth, if we are to give any credence to the evidence which is uncontradicted and to the findings of the jury.

But it is claimed that the plaintiff does not remember the events occurring at her birth or for some time thereafter. That is true, and we are unable to state any particular age at which a child remembers events, but when this plaintiff became older, and for several years, she was at all times in constant communication with John R. Brigham and he admitted, as the evidence shows, to everyone, with hardly an exception, that the plaintiff herein was his daughter, and he always treated her and recognized her as such. His admissions, the family album, and the signature of John R. Brigham in his own handwriting acknowledging his parenthood is not open to impeachment. It is natural for people to be interested in their family history, and in matters of this kind it is a general rule that everyone knows his family history better than anyone else, and, therefore, the statement advanced by defendants, that the plaintiff could not remember things immediately connected with her birth, is beside the question, for the subsequent admissions of John R. Brigham, the family album and the evidence of the other witnesses fully corroborated the plaintiff in every respect and overwhelmingly proved that she was the daughter of John R. Brigham, which is unquestioned, and that her parents had complied with all the requirements of the statute in every respect and to the minutest degree, and with a preponderance of the evidence which would satisfy the requirements of a criminal statute.

And as against this mass of evidence the defendants only introduced the opinions and the reputation of John R. Brigham in the early days of Portland. This is negative testimony of the flimsiest kind and can have but little, if any, weight against the positive testimony of the plaintiff and her witnesses. This brings us to the question as to the weight to be given to the jury verdict in this case.

The policy of this state has been declared by constitutional amendment that in actions at law the findings of a jury on a question of fact are conclusive. While this constitutional amendment does not apply to suits in equity, it nevertheless shows the policy of the people of the State of Oregon acting in their sovereign capacity. In equity suits the law was early laid down as follows:

"That while the verdict was 'not conclusive upon the courts it should not be set aside unless clearly against the evidence.'" Swegle v. Wells, 7 Or. 222, 226.

In De Lashmutt v. Everson, 7 Or. 212, 219, the rule was stated as follows:

"This court further held that where a verdict has been taken in such cases in the court below it comes up with the transcript on appeal and may be read in evidence, and while not conclusive upon the court it should not be disregarded unless clearly against the evidence."

The jury in this case were called upon to decide the issues of fact. The trial continued for many days and was bitterly contested. The jury had an opportunity to see the witnesses and hear them and they were in the atmosphere of the trial. We have nothing to guide us here but the cold record. We cannot see or hear the witnesses or judge of their veracity except from the printed record. Under such circumstances, we feel that we would be assuming a heavy responsibility in setting aside the verdict of this jury and declare this woman a bastard, after the jury by satisfactory and competent evidence had rendered a verdict establishing her legitimacy.

Under these circumstances, we do not believe that we have any right to usurp the functions of the jury and say that they were wrong in favor of the evidence presented by this record.

Regarding the salient facts in this case and without attempting to review the transcript of the evidence, which covers 660 pages together with a group of exhibits, we will call attention to the following excerpts from the testimony.

The plaintiff gave the following testimony:

"Q. Now, have you ever heard your father or mother talk about the time of your birth? A. Well, I heard them say that they were married in California.

"Q. Do you know how long before your birth they were married? A. I think it was in 1878.

"Q. And how long did they live together at that time if you know or have you ever heard them. A. (Interrupting.) Well, they were very happy until about * * when I was four years old, when there was some little disturbance.

"Q. How do you know that? A. Well, from what father said and mother said.

"Q. To what extent did you correspond with him during his lifetime. A. Up to the time of his death practically.

"Q. How frequently did you hear from him. A. I generally got a letter about once or twice a week.

"Q. Now you have said that you were born in Portland; that your folks told you that you were born in Portland. Do you know where in Portland they said you were born. A. I don't know whether it was in the Reed residence or Reed Block, there was something about a Reed place."

She testified that she was always known and went under the name of Mercedes Brigham.

Then follows this testimony:

"Q. Have you heard your father and mother say how long they lived together after they were first married, before you were born? A. No, not particularly, 'til this trouble came up, when I was about five.

"Q. That would be about how many years? A. About five years.

"Q. Did you have any conversation, or ever have any conversation with him about that particular incident, when he went back to New York, and if so, just tell the jury what he said to you about it. A. He said he was awfully sorry, because he had made a mistake, that he hadn't treated mother different.

"Q. How many times did he talk to you about that. A. Well, you see it seemed to kind of prey on his mind, in regard to that one incident.

"Q. Did he talk to you about it quite frequently then? A. Different times, he would, and he would cry about it.

"Q. What was his temperament as to being nervous or otherwise? A. He was of a very nervous disposition, and he shook quite a bit, just like I do sometimes.

"Q. Now, in these conversations with your father and your mother, and particularly your father, about their living together prior to your birth, how long did they say they had lived together before you were born. A. Well, he told me they were married in 1878.

"Q. Yes; well, how long did they — did they go to living together when they were married? A. 1878, and I was born in 1879.

"Q. And did he say that they lived together during that time? A. Yes, sir.

"A. And in months or years, how long did he say they had lived together prior to your birth? A. Up to the time they had that little difficulty when I was about five years old.

"Q. That is after your birth, Mrs. Wadsworth? A. Yes.

"Q. But prior to your birth, for how many months did they live together — for more than a year? A. Yes, for more than a year.

"Q. For more than a year, and after your birth, then as I understand you, they lived together happily, so they said. A. (Interrupting.) Yes, so they said.

"Q. (Continuing.) — up until this New York trip."

Then as illustrating the relation of the parties we find in the record the following letter dated September 26, 1923, from John R. Brigham in his own handwriting, reading as follows:

"Portland, September 26th — 3 P.M. 1923.

"Dear Sadie: I was surprised to get the nice fruit from you. It is awful kind in you to remember me so kindly and how can I ever pay you for it. I looked over all of my mail to see how you want me to address your mail. The fruit was fine and to think from poor mothers farm at the Dalles and she so long worked. Oh I wish she of put it all in shape as she left it had it on record. No one knows what I did for her. God help her. Beloved love to all. Sadie I expect to go to San Diego the last of this week. you can drop me a few lines direct here at Perkins Hotel Portland and your name so I can address proper, yours

"J.R. BRIGHAM."

Then the following questions and answers occur:

"Q. Now, during this time that your mother and father and you were living together, how did they speak to each other? That is to say, how did they address each other, when they talked to one another? A. Well, they had little nicknames for one another, like all families do.

"Q. How did they refer to one another? How did they refer to one another when speaking to you. What for instance, would your mother call John R. Brigham, how would she refer to him? A. She always said 'Papa' or 'Pop.'

And to show how this daughter addressed her father, the following is taken from the record:

"My dear darling papa: Trust you arrived safe. Its sure a long tiresome long trip. Do hope you are feeling better by now. Am enclosing you a picture of dear mother's grave. It was taken on her dear birthday, Jan. 1. Oh how I do miss her dear more than words can tell or express to you. It's so lonely without her. As I am all alone in this world it's sure sad. My heart so heavy. Today I went up the creek and bought a nice male duck, so as to raise some little ones. When I was down to Portland I got some of those old fashion peach plums like dear grandpa had, two dozen; mother didn't have any. I always liked them. Also got forty prune trees to fill out where some that died. And fifty apricot trees. And six cases of dynamite to blow out some stumps and clear the good land; plant potatoes this spring and then in the fall, trees. As it not good a long to be idle. Mother dear only had a few old hens and they were about eight years old, so I got some new strain as to get eggs next winter. When the market is good I must close dear. And trust these few lines will be of cheer to you dear, as I am sure lonely without "you." My dear mother the boys join in sending their regards,

"Your lonely little girl."

Then regarding her mother's death, we find the following letter from John R. Brigham in his handwriting:

"Dear Sadie: I have been trying to drop you a few lines. Oh, that must of been awful shock to you. Oh, how I wish I could have seen her to have a talk with her and now we don't know what will be done with all of her income that she got for the forty years she worked for. I will try and come up to Portland next week and if I do I will come and see you, but will let you know. Now Sadie, be good and you will have lots of cash, so you don't worry. Oh, if we could talk; and I am all on a tremble; have had so many and so busy, I have come from San Diego; went to get away from the people; and I am in it worse than ever, but you tell them I will come and you and I can see how the disposition of the whole thing is. Now Sadie, don't work too hard nor worry. God bless you. It will be about two weeks before I go to Portland. Goodby, lots of love, Excuse all.

"J.R. BRIGHAM."

It also appeared in the evidence, and was uncontradicted, that John R. Brigham frequently took trips with the plaintiff's mother to The Dalles; that, during the period of plaintiff's infancy and while they were living in Portland, they also took a trip to San Francisco, and that plaintiff's mother was known as Mrs. Brigham in The Dalles and in San Francisco.

The following also occurs in the evidence:

"Q. Then as a matter of fact, you don't personally remember this alleged living together of your mother and father during the first eight years of your life, do you? A. Oh yes, I do.

"Q. How old do you consider a little girl? A. How old do you consider a little girl; I always knew him as daddy from three years; I always called him daddy, when I began to talk."

It further appears in the testimony that John R. Brigham told his daughter that they were married in 1878.

This witness also testified to living at the different hotels with her father and mother during her infancy. She also testified that they lived together as husband and wife.

Referring to the plaintiff's mother, the following occurred:

"Q. Well I am asking you now was she called Mrs. Brigham before she went to California? A. Yes.

"Q. Where was she known as Mrs. Brigham? A. At The Dalles and here and San Francisco.

"Q. In other words you didn't live with your mother and Mr. Brigham from the time you were born until the time when you were six years old did you? A. Oh yes, oh yes.

"Q. As I get it then, from 1880 to 1886, Mr. Brigham and Mrs. Liddy and yourself occupied quarters together in the St. Charles Hotel, is that right? A. Yes, sir."

Mrs. Mary K. Britten corroborated the plaintiff as follows: She testified that she had lived at The Dalles for forty-six years and was acquainted with John R. Brigham during his lifetime as well as Mrs. Wadsworth. She further testified that she first knew the plaintiff when she was possibly a year old or more, and that she saw them at The Dalles, Oregon.

"Q. Now, just tell the jury Mrs. Britten, what took place at that time, at that meeting. How you met him and what happened. Who was there and all about it. A. Well I just came from the boat from New York state and we stopped at the Umatilla House and my sister was with me, and we went in and sat down. They were expecting the news about Garfield's election and we all went in there and sat down and we happened to sit in a seat next to Mrs. Wadsworth's mother, and my sister introduced me to Mrs. Liddy, and she says, her name was Liddy at one time, but she said, 'Excuse me,' she said, 'It is Mrs. Brigham.'

"Q. Was John R. Brigham there at that time? A. He was sitting next to her.

"Q. What did he say or do, if anything? A. And my sister asked him, 'Are you married?' and he said, 'We are,' and she said, when my sister introduced me, she said, 'if you please I am not Mrs. Liddy I am Mrs. Brigham. This is my husband, and we asked him if he was married and he said 'We are,' and he picked up the little girl and held her up and he said, 'Look at our marriage certificate.'"

She further testified that she visited the Brighams in Portland and also testified as to the horsewhipping that Mrs. Brigham gave Mr. Brigham, and then told of the most affectionate meeting of father and daughter in the hospital.

"Q. Did you ever hear anybody at The Dalles call her Mrs. Brigham? A. Yes, sir.

"Q. Who? A. Well, when she was introduced there.

"Q. Was that the only time? A. I have heard people down here in Portland too. * *

"Q. Who all were in there at the time? A. Mr. Brigham and Sadie and Liddy.

"Q. You called her Liddy then, did you? A. Well, she is Liddy since; I called her Mrs. Brigham then."

Thomas A. Doud testified as follows: That he was born in Binghampton, New York, in the same town that Mr. Brigham was born and knew Brigham and his people. He testified that John R. Brigham told him "that he had some nieces and brothers and also a daughter at The Dalles, Oregon."

"Q. And did he say anything about leaving any money to the daughter? A. He did.

"Q. What did he say about that? A. He said that he wanted to leave her something and he was going to make arrangements under the will to leave her something. * *

"Q. That was the first time you ever heard he had a daughter? A. Oh no, not the first time.

"Q. When was the first time you ever heard of it. A. I couldn't state that; I always heard that the general rumor was here that he had a wife and daughter.

"Q. Do you recall definitely that he said that his wife was dead? A. I do.

"Q. You do. A. He called the girl his daughter and he said that her mother was dead.

"Q. Well, that isn't his wife? A. That's what he said, his wife.

"Q. He said, 'Her mother is dead,' now, didn't he? Now just recall this conversation. A. Well, I am positive he said 'his wife.'

"Q. You said the first time 'her mother.' I just want you to get it straight. A. Well, I would say it was his wife.

"Q. You recall that? A. Yes."

John F. O'Connor testified, speaking of John R. Brigham:

"Q. Do you know whether he had any family or not? A. Well, all that I know is what I heard, that he had a family yes, and had a daughter.

"Q. What was his reputation at that time as to his marital status, that is was he known as a bachelor or a married man. A. Well, I supposed that he was married. I had heard that he had a daughter. * * Well I heard it around from people talking you know together. I would hear a remark that he was married and he had a daughter. * * I can't recall it exactly, but it was brought out that old John had a wife and daughter here."

R.R. Morrill testified as follows:

"Q. What was the reputation in that respect? What was the understanding in the community? A. The general understanding about the store where I worked was that she was his girl, and he was her fellow; that was about the way we understood it.

"Q. When you say she was his girl and he was her fellow, what do you mean with reference to that; that they were simply keeping company in an orderly or in the ordinary way? A. Oh no, I mean more than that.

"Q. Well — A. (Interrupting.) Well, he was a bachelor, and that she was his lady, or his woman, while they were not married, as a matter of fact, they should be; now, that's about what it means.

"Q. Mr. Morrill, when you say that her reputation was bad, do you mean to state that she had the reputation of being promiscuous with men herself, or did she — or whether her reputation was bad for the character of the business that she was engaged in. A. I never thought that she had promiscuous intercourse herself with men."

John A. McQuinn testified as follows:

"Q. Now do you know what the reputation of Mrs. Liddy was as to having any other man intimate with her except Mr. Brigham? A. None. I am not familiar with the lady at all, I don't know anything about that part of it; although my general impression would be that they were about as near man and wife as that class of people would ever be."

Without attempting to quote from the mass of testimony given in this case, the foregoing is sufficient to illustrate the relation of the parties, and as all the evidence in this record has all the earmarks of truth, we are satisfied to let the verdict of the jury stand.

But the defendants finally say that in order to come within the scope of Chapter 269, Laws of 1925, there must be an actual agreement between the parties engaged in the illicit intercourse that they are living together in the relation of husband and wife before the statute can operate to legitimatize the offspring of this irregular union, and that they must believe that they are married people, and that they must hold themselves out generally to the world as being married in order to satisfy the terms of the said statute. But this harsh construction of this curative statute would nullify it by what would amount to judicial legislation for the simple reason that the statute itself contains no such requirement. We cannot write words into the statute which are not there, and we cannot make this class of common-law relations any holier than they are, nor are we interested in their moral aspects beyond the fact that we are required by the legislative power of this state to legitimatize children born of irregular unions if the parents cohabited together as husband and wife for the statutory period, and this cohabitation does not require any of the formalities of the common-law marriage except those mentioned in the statute. It must be remembered that the legislature could legitimatize bastard children without any marriage of their parents whatsoever, and it would seem an absurd, unjust and uncalled for construction to put on this statute that the parents must make an actual agreement as to their relations, and that if they failed to do so the legislative act does not work and the children are still bastards.

It is the exclusive function of the legislature to make laws, that is, to declare what the law shall be, and, accordingly, acts passed by the legislature may not be enlarged in scope, added to, abridged, amended or otherwise changed by the judiciary. "* * A construction contrary to the obvious meaning of the language used is an encroachment on the legislative power." 12 C.J. 883-885; Chicago, M. St. P.R. Co. v. Westby, 178 Fed. 619 (47 L.R.A. (N.S.) 97); State v. Smith, 56 Or. 21 ( 107 P. 980); Libby v. Olcott, 66 Or. 124 ( 134 P. 13).

In State v. Smith, 56 Or. 21, 29 ( 107 P. 980, Mr. Justice KING said:

"It is not the function of courts to make laws, but to interpret them. As summarized by Mr. Justice BEAN in State v. Simon, 20 Or. 365, 373 ( 26 P. 170, 172): 'Courts must not even, in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.' Smith's Stat. Const., sec. 714."

Mr. Justice WOOD said in Hobbs v. McLean, 117 U.S. 579 ( 29 L.Ed. 94, 6 Sup. Ct. Rep. 876, see, also, Rose's U.S. Notes):

"We cannot insert the exception. When a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate and not to construe."

But it is said that during this period of cohabitation John R. Brigham had rooms elsewhere. That would not prevent his cohabitation with the plaintiff's mother, as cohabitation does not mean that the parties must live together in the same room continually or occupy one room, as the essence of cohabitation is the living together and the sexual relations, and there may be some degree of living apart and an occasional trip away without destroying the relation, so that it was not a part of the plaintiff's case to prove that the three of them were huddled in one room all the time and never departed therefrom.

The claim that the plaintiff must have proved an agreement between her mother and John R. Brigham in order for her to come within Chapter 269, if assented to, would be judicial legislation. It would take away from the plaintiff her vested rights under this statute.

There is much criticism of the plaintiff's testimony because of some discrepancy in dates and incidents, but it is to be remembered that the plaintiff was forty-eight years of age when she testified and as to many of these dates and incidents she was testifying as to matters that happened when she was a very young child. We have examined her testimony over and over and, while it is true that such discrepancy exists, and that her recollection may be unconsciously colored by her interest in the case, the warp and woof of her narrative is true.

As stated in the original opinion, we hold that the negative testimony for the defense is of small value. It is no doubt the case that five hundred witnesses, who knew Brigham in his lifetime, could be called to testify that they knew Brigham and never heard of him being a married man. As a rule they were not of his class in life. The doings or relations of a landlord of an assignation house were a matter of profound indifference to them. They knew him in a business way, knew that he conducted a hardware store and greeted him when they met him, but that was presumably about all.

The writer is probably acquainted with nearly a thousand lawyers in Oregon, but if he were called upon to say whether a particular attorney was a married man or a bachelor, he would be able to answer perhaps as to one in ten, and as to the others, he would have to say, "I never heard of him being a married man," although he might in fact be married and have a large family of children.

The statute in question has been treated by the defendants as though the most important matter was to legitimate an irregular union of man and woman; but this is merely secondary to the great object, that of removing the stain of bastardy from innocent offspring. These are the real sufferers which the statute wisely seeks to aid, and as to them it should be liberally construed not only in their behalf, but as a warning to the lustful that they cannot live and cohabit with a weak woman, beget children by her and hold her out as a wife so long as her charms last, and when these have faded, to repudiate these relations and leave her and the innocent offspring helpless to bear the opprobrium of bastardy.

There are many incidents alluded to in the original opinion which tend to support the theory that Brigham and plaintiff's mother lived together as man and wife, but it is needless to again recount them here. They satisfied the jury which found its verdict accordingly, and which verdict should not be lightly set aside.

Under the old English equity practice the right of an heir at law to demand a jury on the question of legitimacy was a matter of right: Adams' Doctrine of Equity (8 ed.), p. 377; Daniell's Chancery (6 ed.), vol. 2, p. 1075. This court practically held otherwise in Stevens v. Myers, 62 Or. 372 ( 121 P. 434, 126 P. 29); but, while the right to such a jury is now discretionary and its verdict only advisory, it should not be disregarded except when clearly against the weight of evidence. See authorities quoted in the original opinion.

While it would be going too far to say that the rule in equity cases should be analogous to that applied by the Constitution to actions at law, namely, where there is any evidence to support the verdict, it should not be disregarded. Yet, that provision indicates the trend of modern thought and justifies the statement that only where a verdict is clearly against the weight of evidence should it be disregarded. As abundantly shown, such is not the case here.

The original opinion is adhered to.

RAND, C.J., and BEAN and BROWN, JJ., concur.