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not his domicile a person may reasonably expect, and be expected, to have his voluntary acts subjected to the law of his actual situs.
SECTION 21. INVOLUNTARY ACTS.
The personal capacity and liability of a party so far as it is connected with involuntary acts is governed by the law of his legal situs or domicile. Under this division would be included transfers of property by bankruptcy, succession and will. It would at first seem that the transfer of property by will was a voluntary act, but as the final act which gives effect to the will is an involuntary one, the whole transaction is classed as an involuntary one.
SECTION 22. DUAL NATURE OF MARRIAGE.
Marriage is of a dual nature. There is the marriage contract by which the relation is entered into, and the marriage status which is assumed by the marriage contract.
SECTION 23. THE CONTRACT OF MARRIAGE.
The contract of marriage is, like all other contracts, a voluntary act. The capacity of the parties to enter into such contract are determined, therefore, by the law of the place where the marriage ceremony is performed. The general rule is that a marriage good where entered into is good anywhere.
The question of the validity of a marriage valid where entered into, in a state where such marriage would have been prohibited, was discussed at length in the case of Van Voorhis vs. Brintnall, the decision in which case was in part as follows:
'86 N. Y., 18.
"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 vs. Machado, 4 Russ., 225; Potter vs. Brown, 5 East, 130; Story's Conflict of Laws, Sec. 242); and this, says Kent (2 Com., 454), 'is jure gentium, and by tacit assent,' and Lord Brougham in Warrender vs. 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 ex debito justitiae. 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, Sec. 69, 79; Connelly vs. 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 vs. 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 vs. 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 vs. Warrender, supra; Lacon vs. Higgins, 1 Dow. & Ry., 38; Butler vs. 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 vs. Curtis, 6 Mass., 358; Medway vs. Needham, 16 id., 157; Parton vs. Hervey, 1 Gray, 119; Putnam vs. Putnam, 8 Pick., 433; Dickson vs. Dickson, 1 Yerg., 110; Stevenson vs. Gray, 17 B. Monr., 193; Fornshill vs. Murray, 1 Bland. Ch., 479); and by which our own, with few exceptions, have been governed. In Decouche vs. Savetier (3 Johns. Ch., 210), Chancellor Kent says: "There is no doubt of the general principle that the rights dependent upon nuptial contracts are to be determined by the lex loci.' In Cropsy vs. Ogden (11 N. Y., 228), Johnson, J., says (p. 236): 'By the universal practice of civilized nations the permission or prohibition of particular marriages of right belongs to the country where the marriage is to be celebrated.' The court had before it the case of one who, having a former wife living, from whom he then had been divorced for adultery by him committed, married a second time in this State. His last marriage was held to be void under our statute prohibiting a second or other subsequent marriage of any person 'during the life-time of any former husband or wife of such person.' There the former marriage, his adultery, and the existence of his first wife established the condition or quality of the man. They were facts in his history, and brought him within the terms of our law. The general rule above stated was applied. The lex loci governed. But the court said it was not necessary for them to consider what would have been the effect of a marriage celebrated out of this State. Its attention was, however, directly brought to the statute relating to marriages, and the circumstances under which the remarks above quoted, and others seeming to
discriminate between a marriage in this State and out of it, were made, render them the more significant. In Hoviland vs. Halstead (34 N. Y., 643), a person divorced for the same offense in this State promised in New Jersey to marry the plaintiff. He married another and an action for the breach of this promise was brought here and failed. The parties resided in this State and contemplated the performance of the contract here. The court carefully distinguish the case so presented from one where a marriage had taken place in a foreign State. They assume that the latter would be treated as valid, although the parties had gone there with intent to evade the laws of this State, and citing Medway vs. Needham (supra), say, the doctrine 'in favor of marriage so contracted is founded on principles of policy to prevent the great inconvenience and cruelty of bastardizing the issue of such marriages, and to avoid the public mischief which would result from the loose state in which people so situated would live.' Indeed the general doctrine is so well settled by the decisions of all courts and the reiteration of text writers as to become a maxim in the law, that one rule in these cases should be followed by all countries; that is, the law of the country where the contract is made. (Story, supra, 84; 2 Kent's Com., 91-92.) There are no doubt exceptions to this rule; cases, first of incest or polygamy coming within the prohibitions of natural law (Wightman vs. Wightman, 4 Johns. Ch., 343; Hutchins vs. Kimmell, 31 Mich., 133; Story, supra, Sec. 113 a [7th ed.]); second, of prohibition by positive law. It is contended by the learned counsel for the respondent that the judgment may be upheld upon the ground that the marriage is one of the latter class. The assertion, however, is
left unsupported by argument or the citation of authorities. Its truth is not so self evident as to dispense with either, and the omission, coupled with our own examination, leads us to think that the courts have not yet spoken with a controlling voice in its favor. It is to be maintained if at all upon the prohibition in the judgment of divorce already referred to and the provisions of the statute which made the judgment proper. (Graves vs. Graves, 2 Paige, 62.) The question is not one of ethics or morality, but the extent of the authority of the statute as a rule of conduct. As a direct inquiry it is here for the first time. There are dicta and expressions having relation to it in Cropsey vs. Ogden, and Haviland vs. Halstead (supra), tending to confine the effect of the statutory prohibition and declaration of invalidity to second marriages within this State; but in neither case was the precise question before the court for judgment. In other courts of this State it has met with differing answers. In the Supreme Court, first department, Marshall vs. Marshall (2 Hun., 238), by a divided court, and Thorpe vs. Thorpe (Superior Court of New York City), following it, a marriage under similar circumstances was held void. The judgment now before us went upon the principle of stare decisis, the court below also following Marshall vs. Marshall (supra); Kerrison vs. Kerrison, Special Term, fourth department (8 Abb. N. C., 444), and Matter of Webb (1 Tucker, 372, [Surr. Ct.]) are to the contrary. To the latter class may be added Ponsford vs. Johnson, before Nelson and Betts, J. J. (2 Blatchf., 51). These decisions are irreconcilable, and any determination reached by us must overrule one class or the other. We are therefore at liberty to treat the subject as res integra, unaffected by any paramount