[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *21 By this action the plaintiffs seek a construction of the will of Elias W. Van Voorhis deceased, and an adjudication as to the right under it of the defendant, Rose Van Voorhis. The questions turn upon these facts: The testator died in 1869, leaving a widow and three children, Elias, Sarah and Barker. The widow and Elias were appointed executors. By the will a specific devise was made to his wife, and the residue of the estate given to the executors in trust, "so long as his wife should live," for the accumulation of income and payment by them as therein directed. By itssecond clause two-ninths *23 part of this income was to be paid for the benefit of Barker, as follows: Four hundred dollars annually for the support of Ella Van Voorhis, and the same amount for the support of Elias William Van Voorhis, children of Barker, until they should respectively reach the age of twenty-one years, the remainder of said two-ninths to Barker. Before the commencement of this action Ella reached the age of twenty-one years. The sixth clause of the will provided that upon the death of the testator's wife all his property should be divided equally between his children above-named, share and share alike, and the issue of any deceased child should take the share his, her or their parent would have taken if then living. Elizabeth was then the wife of Barker and mother of Ella and Elias, his children. Afterward, and on the 19th of April, 1872, in consequence of proceedings begun by her, the Supreme Court of this State dissolved the marriage of Elizabeth and Barker, on the ground of his adultery, and also adjudged that it should not be lawful for him to marry again until her death. That event has not happened, but on the 10th of June, 1874, he married Ida L. Baron Schroeder at the city of New Haven, in the State of Connecticut. Both parties then resided in this State, and the trial court found as a fact "that they went to New Haven for the purpose of evading the New York law, for the reason that the said Barker Van Voorhis was prohibited from marrying again in this State." On the same day they returned to New York and continued to reside there until the death of Barker in 1880. Defendant Rose Van Voorhis was a child of that marriage, born in this State April 2, 1875. The trial court also found that the marriage was valid under the laws of Connecticut, but, from the facts above stated, that it was null and void by the laws of this State. Rose, therefore, was adjudged illegitimate and not entitled to take under the will. It was also declared that the two-ninths of the income appropriated for the benefit of Barker (after deducting $400 annually during the minority of Elias) were undisposed of and went by force of the statute of distributions to Elizabeth, his former wife, and her children. The plaintiffs, and Rose Van *24 Voorhis and Sarah Brintnall, defendants, appealed to the General Term of the Supreme Court, where the judgment was affirmed. They now appeal to this court.
The plaintiffs and the defendant Sarah Brintnall object to so much of the judgment as disposes of the income set apart by the second clause of the will. They insist that Elizabeth, the former wife of Barker, has no concern with it. On the contrary, they say it should go to the testator's son Elias, and Sarah, his daughter, each taking one-third, and the remaining third to the children of Barker. This question was not presented by the complaint as one concerning which the executors had any doubt, and they now claim that it was by inadvertence passed upon by the trial court. It would seem, therefore, that the attention of that court should have been called to it in some other way than by exception and appeal. As the case stands there is such a defect of parties as would make unavailing our decision if it should accord with the plaintiffs' views. Elizabeth, the mother, is not before us and would yet have a right to be heard. Whether one released without fault on her part from the obligations of marriage may, upon the death of her former husband, have a share of his personal estate, and if so, whether it is to be measured by its condition at the time of the divorce or at his death, should not be determined in her absence. Our conclusion, however, upon the remaining question will lead to a new trial; and in the meantime such steps can be taken as the parties think fit to complete the record.
That question involves the civil status acquired by Barker Van Voorhis and Ida by the marriage in Connecticut. First, it is a general rule of law that a contract entered into in another State or country, if valid according to the law of that place, is valid everywhere (The King of Spain v. Machado, 4 Russ. 225;Potter v. Brown, 5 East, 130; Story's Conflict of Laws, § 242); and this, says Kent (2 Com. 454), "is jure gentium, and by tacit assent," and Lord BROUGHAM in Warrender v. Warrender
(2 Cl. Fin. 529, 530), declares that the courts of the country where the question arises, resort to the law of the country where the contract was made, not ex comitati, but *25 ex debito justitiæ. And coming to the case in hand, the rule recognizes as valid a marriage considered valid in the place where celebrated. (Story's Conflict of Laws, §§ 69, 79;Connelly v. Connelly, 2 Eng. L. Eq. 570.) "We all know," say the court in that case, "that in questions of marriage contract, the lex loci contractus is that which is to determine the status of the parties," and also declare that this by consent of all nations is jus gentium. In Dalrymple v.Dalrymple (2 Hagg. Const. 54), it was held that a marriage good in Scotland though otherwise by the law of England, is valid in that country; and this was put upon the ground that the rights of the parties must be tried by reference to the law of the country where they originated. In Scrimshire v. Scrimshire (2 Hagg. Const. 395), the same principle is stated in different words. The court say, "All parties contracting gain a forum in the place where the contract is entered into." (Warrender v. Warrender,supra; Lacon v. Higgins, 1 Dow. Ry. 38; Butler v.Freeman, 1 Amb. 303.) Not only is this the result of English decisions, but is believed to state the principle upon which the courts of many of our sister States have acted (Greenwood v.Curtis,
The statutory provisions relied upon by the respondent are found in part 2, chap. 8 of the R.S., entitled "Of the domestic relations," and especially in those articles which treat "of husband and wife." (Tit. 1, arts. 1 to 5, vol. 2, p. 138.) *28
The statute does not define marriage or introduce a new formula for the relation, but treats it as existing, and declares it shall continue "in this State" a civil contract (§ 1, chap. 8, tit. 1, art. 1, part 2), adopts the principles of the common law which renders invalid marriages between persons connected by certain lines of consanguinity (§ 3, id.), or who for want of age or understanding are incapable of consent, or who if capable have been induced to give it by fraud or force. (§ 4, id.) It then declares that no second marriage shall be contracted by any person during the life-time of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been dissolved for some cause other than the adultery of such person, and that every marriage contracted contrary to this provision shall be absolutely void. (§ 5, id.) These circumstances are restated as grounds of divorce, and it is enacted that "whenever a marriage shall be dissolved pursuant to the provisions of this article, the complainant may marry again during the life-time of the defendant, but no defendant convicted of adultery shall marry again until the death of the complainant." (§ 49, id., art. 3.) As originally enacted the same statute (Tit. 1, supra, § 2), not only made the consent of parties essential, but limited the class to those "capable in law of contracting," and by its definition excluded males under seventeen and females under fourteen years of age. Although this provision has been repealed, it throws some light upon the legislative intent in devising the system of laws concerning husband and wife. Conditions were annexed not only to the duration, but the creation of this relation, and the frequency with which it might be formed. Certain persons are declared capable, others incapable of forming it, and still others must submit to its dissolution. In one instance, as in the case before us, it cannot be contracted with another while the first co-contractor is living. It is obvious that this last condition is in the nature of a penalty. (Wait v. Wait,
The statute does not in terms prohibit a second marriage in another State, and it should not be extended by construction. The *33
mode of construction contended for by the respondent, if applied to the statutes of treason and dueling and the punishment of second offenses, would make useless those provisions which relate to the conduct of a citizen out of the State and the commission of crime in this State by one convicted in another State. Can they be disregarded, or the legislature charged with useless enactments? On the contrary, we must give weight and meaning to them; to their presence in those laws and their absence in the one of marriages. The difference is essential, and the varying language cannot be disregarded. There is first a prohibition broad as in the act before us, wide enough to take in all persons within the State, and prohibiting certain acts — a personal prohibition. Not content with that, the statutes go further and extend the same consequences to those acts when committed out of the State. These provisions are lacking in the law before us. When, therefore, we consider the legislation of this State before referred to, and the general rules regulating the territorial force of statutes, we cannot but regard the omission to provide by law for cases like the present as intentional, but if not, in the language of Lord ELLENBOROUGH, in Rex v. Skone (6 East, 518), "we can only say of the legislature quod voluit nondixit." This view is sustained by the course of decision and legislation in Massachusetts. In Medway v. Needham (supra), the plaintiff sued for the support of certain paupers — one Coffee and his wife — alleged to have their legal settlement with the defendant. The only question on the trial, or the subsequent hearing before the whole court, respected the validity of his marriage. He was a mulatto and his supposed wife a white woman. They were inhabitants and residents of Massachusetts at the time of their marriage, and the statement is that "as the laws of the province at that time prohibited all such marriages, they went into the neighboring province of Rhode Island and were there married according to the laws of that province," and returned immediately to their home. Both courts held the marriage good. The statute regulating marriages in Massachusetts was at that time like our own, but the court placed their decision upon the *34
general principle that a marriage good according to the laws of the country where it is entered into shall be valid in any other country, PARKER, Ch. J., saying: "This principle is considered so essential that even where it appears that the parties went into another State to evade the law of their own country, the marriage in the foreign State shall be valid in the country where the parties live;" and, referring to the statute which declares second marriages absolutely void, says: "They are only void if contracted within this State." West Cambridge v. Lexington (1 Pick. 506) involved the rights of infant children of Samuel Bemis, paupers, to public support in that State. The question turned upon the validity of his second marriage; the first had been dissolved for his adultery. Afterward and while his former wife was living, he married in New Hampshire, and the children were from that union. The court held that if the marriage had been contracted in Massachusetts, it would be unlawful and void, but that the laws of no country have force outside of its own jurisdiction, and therefore one, who by reason of his offense against it is disabled from contracting another marriage, may lawfully marry again in a State where no such disability is attached to the offense; and further, having a right to marry there, he could not while there violate the statutes of Massachusetts against polygamy. It was therefore held that the children were legitimate, their settlement to be where that of their father was, and the town entitled to recover for their support. The circumstances of Putnam v. Putnam (8 Pick. 433) are singularly like those before us; and it was held that although the second marriage was a clear case of evasion of the laws of the Commonwealth, it was valid upon the general rule referred to in the cases already cited. The court also say: "If it shall be found inconvenient or repugnant to sound principle, it may be expected that the legislature will explicitly enact that marriages contracted within another State, which if entered into here would be void, shall have no force within this Commonwealth." There is thus recognized a necessity discussed earlier in this opinion, for express legislation, if the citizen is to be held bound by the laws *35
of his State for acts performed by him outside its limits. Legislation to this end was afterward had. (Rev. Stat. of Mass., ch. 75, § 6; Gen. Stat., ch. 106, § 6.) Referring to provisions of the act making void marriages between certain parties, or by persons in prescribed conditions or under certain circumstances, it declares, "where persons resident in this State, in order to evade the preceding provisions and with an intention of returning to reside in this State, go into another State or country and there have their marriage solemnized, and afterward return and reside here, the marriage shall be deemed void in this State." It is not necessary to consider the extent or scope of this statute. It has been discussed by the courts of that State, and is said by DEWEY, J., in Com. v. Hunt (4 Cush. 49), "to have been intended to meet this class of cases, that is, of individuals fraudulently attempting to evade the law of Massachusetts, so far as respects persons divorced for the crime of adultery, and to declare such marriages by the guilty party to be void in this Commonwealth;" or as HUBBARD, J., says, in Sutton v. Warren
(10 Metc. 453): "The only object of this provision is, as stated by the commissioners in their report, to enforce the observance of our own laws upon our own citizens, and not suffer them to violate regulations founded in a just regard to good morals and sound policy." We have no law in relation to this subject similar to that of Massachusetts or our statutes before cited in reference to dueling and treason. There is nothing in the statute to indicate an intention of the legislature to reach beyond the State to inflict a penalty. Nor can I discover an intent so to impress the citizen with the prohibition as to make an act, which is innocent and valid when performed, an offense when he returns to this State and himself a criminal for performing it. Every presumption is against such intention. The respondents rest their case upon the general words of the statute. These, taken in their natural and usual sense, would undoubtedly embrace the case of the appellant. "No second * * * marriage shall be contracted by any person during the life-time of any former wife of such person." "Every such marriage shall be absolutely void." "No *36
defendant convicted of adultery shall marry again until the death of the complainant." Equally broad are the provisions of the criminal law declaring the punishment of the offender. They would comprehend every second marriage wherever celebrated, and take in the citizens of every State. It cannot be denied that they are subject to explanation and restraint. Mosher v. The People
(supra), and the principle on which it rests, shows the criminal law to have no application to a marriage out of the State. The same rule was applied in Sims v. Sims (
Second: Nor are we, in the absence of express words to that effect, to infer that the legislature of this State intended its laws to contravene the jus gentium under which the question of the validity of a marriage contract is referred to the lex locicontractus, and which is made binding by consent of all nations. It professedly and directly operates on all. To impugn it, is to impugn public policy. And while each country can regulate the status of its own citizens, until the will of the State finds clear and unmistakable expression that must be controlling. "Where," says MARSHALL, Ch. J. (U.S. v. Fisher, 2 Cranch, 389), "rights are infringed, where fundamental principles are overthrown, where the general *38 system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects."
Our conclusion is, that as the marriage in question was valid in Connecticut, the appellant Rose Van Voorhis is a legitimate child of Barker, and as such entitled to share in the estate of the testator.
The judgment should be reversed and a new trial granted, without costs to the plaintiffs or Sarah A. Brintnall, but with costs to the appellant Rose Van Voorhis and the respondents Ella and Elias, to be paid out of the estate.
All concur, except FOLGER, Ch. J., not voting.
Judgment reversed.