In re the Accounting of Hall (61 A.D. 266, 1901)

Smith, J.:

Unless the appellant was the illegitimate son of Alice Maude Eithian and, therefore, not of kin-to Ella Maria Eithian named in the will, the decree of the surrogate cannot stand.

Edwin Eithian, the father of Alice Maude Eithian, was a retired American naval officer. While traveling in Europe the. daughter,

Alice Maude, was placed in-'a' school at Milan. From there she eloped at the age of nineteen With Alberto Martinez, a citizen of the Argentine Republic. They Went to Paris Where they stayed not more than four days when they departed for the Argentine Republic. At Paris some form of marriage service was performed. • At Buenos Ay-res they lived as husband and wife for about eighteen monthSj when Martinez sent her to her father in- England,- and thereafter refused to live with her or to support her, and deserted her. Thereafter, the said Alice Maude came with her father to Dakota where a judgment of divorce against Martinez is claimed to have been obtained. She thereafter married Richmond Kingman in Dakota, where to that marriage this appellant was born. The surrogate has found that a valid marriage was contracted with Martinez in France, and that the decree of divorce obtained in Dakota was invalid on the ground that the said Alice Maude had not at the time of the commencement of the action established a domicile in the- State of Dakota sufficient under the laws of Dakota to give jurisdiction to the court to grant a decree.

Three questions then require examination: First. Did the surrogate properly- hold that a valid and binding marriage had been contracted by Alice Maude Fithian with Alberto Martinez in Paris? Second. Did Alice Maude acquire in Dakota, prior to the commencement of her action, a domicile sufficient to give jurisdiction to the- Dakota court to authorize the decree of divorce ? Third. If the decree of divorce granted in Dakota was valid in that State, can this infant appellant take property as one of the next of kin of Ella Maria Fithian under the laws of this State ?

First. The record contains the Civil Code of France by which marriages are regulated. By that law it is required that a marriage be celebrated at the domicile of one of the parties, and a residence of six months is required to constitute such a domicile; that a record of the proposed marriage be' made and two publications thereof, with an interval of eight days between them, on a Sunday before the door of the town hall; that the consent of the girl’s parents, if living, if she be under the age of twenty-one years, appear, and that the celebration of the marriage be had before a civil officer. It appears in this case that with none of these conditions did the parties comply. They were in Paris not to exceed three or four days before the marriage ceremony claimed. Ho domicile, therefore, could have been acquired. Ho publication could have been made in accordance with the laws of France. The father’s consent was confessedly wanting.' In fact, it is admitted and found by the learned surrogate that the marriage was not and could not have been performed in accordance with the requirements of the Oivil Code of France. The marriage is held valid by the surrogate, however, as a putative marriage under a supposed fiction of the French law. The statutory basis of such a finding is contained in. the following articles of the Civil Code, of France:

“Art. 201. If a marriage has been declared void, not only the parties to the- marriage but the issue thereof shall, nevertheless, enjoy all civil rights resulting therefrom, if the marriage was contracted in good faith.

“Art. 202. If only one party was in good faith, only the party in good faith and the issue- of the marriage shall be entitled to the civil rights resulting therefrom.” , (See Kelly’s French. Law of Marriage [2d ed.], 170.)

The surrogate has found that the marriage in France was contracted by Alice Maude in good faith. If it were necessary to review this finding, a serious question is presented whether good faith in the eye of the law can co-exist with an elopement arid clandestinity.. Authorities are "not wanting which hold that clandestinity is" incompatible-with the good faith required by law to give civil rights in an illegal marriage. But • assume for the argument that the attempted marriage was- contracted by'her in good faith. It is not found nór could it be found that-there was good faith on the part of Martinez. To him the French law gave no civil1" rights of the marriage. These sections of the Civil Code are found in a chapter of the Code entitled'“ Of actions-to annul marriage.” There is no- other provision of the French law detérminirig what shall bé the rights of parties innocent or guilty to a marriage not contracted with the formalities required by law. The learned surrogate has held , that this putative marriage, as he calls it, constituted a valid marriage-Which-was a bar to the remarriage of Alice Maude before it was annulled by a court of competent jurisdiction. Is this conclusion correct? While it was Undoubtedly competent for the French government-so to declare of "marriages there celebrated, it has been seen that they have not expressly so declared,. Such an important provision in the law, if not expressed, should be found only by necessary implication. In the first place such implication" is not warranted by the sections of. the French Code.. It might well be inferred that the rights assured to an innocent party to a void marriage upon annulment should belong to such a party before an annulment of the attempted marriage. But those rights. are simply the civil rights of property. The purpose of the law in granting civil rights to an innocent party is fully accomplished by according to her and her children the rights of property. It can add nothing to give her a status as a married woman. Such a construction would, and in this case has, worked to the detriment rather than the benefit of the person for whose benefit the law was enacted. The very fact that those rights are given only to an innocent party while withheld from a party not innocent is to our minds convincing of an intent to award to the innocent party only property rights and legitimacy to the children. The marriage is not declared valid even though both parties be innocent. Much less could it be if one party only be innocent and the civil rights of the marriage refused to a guilty party.

Again, this construction is negatived by the Civil Code itself. In article 189 of the French Code it is provided in an action to annul a second marriage: “ If the parties to the second marriage plead the nullity of the first marriage, the validity or the nullity of such marriage must first be decided.”, From this provision is necessarily implied the right to a party to a void marriage to remarry before the annulment of the void marriage and to uphold the second marriage, if attacked, by showing the nullity of the first marriage. Had Alice Maude been married to Kingman in France by due formality, in an action there brought by Martinez to annul the marriage she could have upheld her marriage to Kingman and shown the nullity of the assumed marriage to Martinez, though no judgment of nullity had been obtained before her marriage with Kingman.

Still again, this construction is opposed to the policy of the common law. In those States where licenses to marry are required an attempted marriage without a license is void absolutely. Either party to such attempted marriage is free to contract any other marriage, and it has never for a moment been supposed or ruled that a void marriage must be annulled by a court before a remarriage. (See opinion of Follett, J., in Finn v. Finn, 62 How. Pr. 83.)

This question has been thus far considered independently of the opinions of those French commentators who have discussed the interpretation of this law. The views of these commentators are upon some aspects of the law widely divergent. The provisions of the Code assume to refer only to marriages which are pronounced null hy the judgment of the court. As to whether a void marriage may be deemed a: putative marriage before such a judgment the commentators are not agreed. In some commentaries no distinction seems to be made between marriages- which are void and those merely voidable. In the- extract from the writings of Mourlon, quoted in the opinion of the learned surrogate, are statements which, standing alone, would seem to declare a putative marriage valid for all purposes until annulled. But his definition of a putative marriage is: “ A marriage which is in reality null, but which has been contracted in good faith by the two parties or- by one pf them.” Read in connection with this definition what he has said in reference to the effect of putative marriages can fairly be inter-, preted to mean that those marriages are valid so far as to impose a civil liability upon either party to the other party, if innocent. As, thus interpreted his views in no way conflict with the conclusion Which we have reached, which is based upon the provisions of the French Code itself, as well as upon the analogy, of the common law.

The respondent’s counsel, upon the argument,, further claimed the marriage in France valid upon the ground that as neither Alice Maude nor Martinez were residents of France the French law was not applicable. We are referred to the case of Loring v. Thorndike (5 Allen, 257). In that case an American and a resident of Mayence, in the Grand Duchy of Ilesse-Darmstadt, were temporarily residing in the free city of Frankfort in Germany. ¡Neither of them ever had any domicile there. Upon making inquiries of ■magistrates and counsel they were advised that they could be legally married before the consul of the United States. There" was thereupon a marriage agreement drawn up >nd signed and the consul declared their marriage legal and valid. The validity of this marriage was questioned by reason of the fact that it was not performed in accordance with the laws of the city of Frankfort. The court, however, held that the formalities specifically required by the Frankfort law were not applicable to foreigners, but the marriage was valid in Frankfort “ as having been duly contracted according to the prescriptions of that portion.of the common law which had not been there abrogated or repealed.” If, then, the common law was in force in Frankfort, as it appears, and if the special marriage laws made did not apply to foreigners temporarily there, the parties were there married in accordance with the laws of Frankfort, and the marriage valid there was valid everywhere. Assuming, then, for the argument, that the formalities required by the laws of France do not apply to foreigners temporarily in France, there is no proof that the common law is there applicable so as to render valid a common-law marriage. In fact, the court will take judicial notice that the common law is not and never was in force in France.

It is further urged that the marriage will be presumed to have been contracted at a consulate. But to be valid, if there contracted, it must accord with the laws of the domicile of the contracting parties. Here the contracting parties had no common domicile. While, perhaps, under the laws of the domicile of Alice Maude, a common-law marriage would be valid, not so under the laws of the domicile of Martinez. In the record appear the laws of the Argentine Republic. Mo facts appear in the record which would justify a finding that the marriage was contracted in accordance with these laws, nor is such a finding claimed. The marriage then appears to have been invalid both by the laws of France and by the laws of the Argentine Republic—the domicile of the husband. Alberto Martinez was never married to Alice Maude. He was not her husband. If the conclusion of the learned surrogate be correct, she was a married woman without a husband. This is clearly a legal paradox. There can be no marriage vinculum which does not bind both parties. In Atherton v. Atherton (181 U. S. 155, 162) Justice