I concur in the decision made in this case with the following explanation of my reason for so doing. *Page 235
Our statutes make bigamy (whether innocently committed or not) a ground for divorce. See Par. 9, Section 4983 C. G. L., 3191 R. G. S. This is an express recognition by our statutes of the now generally followed modern rule that if a marriage is contracted by a woman during the existence of a prior undissolved marriage of the man, and is celebrated with all the formalities of law, and in good faith on the part of the woman, it (though bigamous) imposes upon her all the obligations and invests her with all the rights of a lawful wife so long as she continues the marital cohabitation in good faith and in ignorance of any annulling impediment on the part of the husband. This was the old Spanish law on the subject (Smith v. Smith, 1 Tex. 621[1 Tex. 621], 46 Am. Dec. 121 and note) and paragraph 9 of Section 4983 C. G. L., supra, in making a prior undissolved mariage one of the statutory causes for divorce, expressly recognizes that even a bigamous marriage has certain attributes of legality which operate to protect acts done under it from the odium of immorality and nullity, which if allowed to attach, might bastardize children and stigmatize the innocent for acts done under a formal marriage which may have been entered into with all the required formalities of law by one or both of the parties in utter ignorance of the existence of an annulling impediment on the part of one of them.
In this case the appellant and appellee both contracted their marriage in the bona fide belief that the first wife was dead. Were it not for the New York annullment decree, I think the second wife would have a right to divorce under par. 9 of Section 4983 C. G. L., supra, attended by all the rights and benefits that go to a wife under a valid marriage. Certainly the child, Benjamin Worman, born within the wedlock of the second marriage, should *Page 236 not be regarded as illegitimate on account of any now obsolete notion that his mother's marriage was void ab initio, because of the actual existence of a first wife whose death was believed in by both parties with every good reason to support such belief at the time the second marriage was entered into.
But the New York court annullment proceeding having destroyed the second marriage for all purposes, makes par. 9 of Section 4983 C. G. L., supra, inapplicable.
ON PETITION FOR REHEARING.