| Cal. | Oct 15, 1852
delivered the opinion of the Court, with which Murray, Chief Justice, and Anderson, Justice, concurred.
The last clause of section 2, of the Act to regulate Descents and Distributions, declares—“ The issue of all marriages deemed ^null in law, or dissolved by divorce, shall be legitimate.”
¡I (Marriage is regarded as a civil contract, and no form is neces1 sary for its solemnization. If it takes place between parties able to contract, an open avowal of the intention, and an assump- , / tion of the relative duties which it imposes on each other, is sufV ficient to render it valid and binding.}
The ceremony, therefore, which took place between the plaintiff and defendant, as shewn by the complaint, was sufficient to constitute them man and wife, if there had been no legal disability. But with such disability existing, it would then come within the meaning of the act above quoted, and is a “ marriage deemed null in law.”
The results, however, of such invalidity, as they would affect the issue of the marriage- at common law, are here provided against.
" The ceremony which was instituted by the parents, although ij' illegal and void as to them, is declared sufficient to protect their ) offspring against the stain of bastardy, and its accompanying ! conditions. The law declares they shall be legitimate. They • are, therefore, in relation to their father, the inheritors of his ( name, his heirs apparent, and entitled to look for, and demand , from him, his care, maintenance and protection. ^jOn the other , hand, he has the unquestioned right to their .custody, control,
This view renders it unnecessary to notice the other questions which are raised, as it is completely decisive of the rights of the parties.
The judgment is reversed.