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 *269thereafter 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 sur*270rogate, 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 *271simply 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 *272the 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 *273laws 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 <xray, in writing for the United States Supreme Court, says: “ A husband without a wife or a wife without a husband is unknown to the law.” The assumed marriage, not binding upon Martinez except possibly to bind him for her support, did not invest her with the status of a married woman. Alice Maude, therefore, had capacity at any place to contract the marriage with Kingman and the appellant is her lawful offspring.
We do not here decide whether the French law is applicable to the marriage of foreigners temporarily in France either as to the formalities required or as to the civil rights acquired thereunder. Mor do we decide whether under that law civil rights are given to *274an innocent party to an attempted marriage ■ in disregard of every formality required by that law. We are unable to find a binding marriage under' any law which can be applicable to the conditions, here existing, and even though under the law civil rights attached to this marriage such civil rights create no marriage status.
Second. The conclusion which we have reached upon the first, question discussed disposes of this appeal. Inasmuch, however, as there is another question of fact determined by the surrogate with which determination we cannot agree, we think it proper briefly to. state the grounds of our non-concurrence. The learned surrogate has found that the decree of the Dakota court was not effectual by reason of the fact that Alice Maude had not. acquired a legal domicile in Dakota prior to the commencement of the action. In an affidavit sworn to upon the 13th day of February, 1889, she swore that she was “ a resident in good faith of the Territory of Dakota for more than ninety day's ” prior to the commencement of the action. In her complaint sworn to upon the same day she swore that “ she is now and for more than ninety days last past has been in good faith a resident of the Territory of Dakota, in the City of Fargo, in the County of Cass.” In the order for the publication of the summons under the signature of the district judge it is recited that it appeared to said ■ judge that the action was brought by the plaintiff, a resident of the Territory of Dakota.. In the decree of the court is recited: “And the Court having heard the proofs necessary to enable [it] to render judgment herein, from which it appears to the satisfaction of the Court that the plaintiff is now a resident of the County of Cass and Territory of Dakota and that she was and had been at the date of the commencement of this action a resident of said County and Territory for a period of' more than ninety days.” It is found by the surrogate that Edwin Fithian and his daughter removed to Dakota in 1887; the action for divorce was commenced upon the 13th' day of April, 1889; the marriage with Kingman in Dakota took place upon the 1st day of July, 1890; the birth of appellant in Dakota and the death of Alice Maude Kingman upon' the 27th day of March, 1893. From the time she went to Dakota she never once left the State. There, is no direct evidence which goes to impeach the good faith of her intention to acquire a domicile. It is true that she went there for the *275purpose of procuring a divorce, but that purpose is not at all inconsistent but rather accords with the purpose of acquiring a domicile. In Minor on Conflict of Laws (§ 90) it is said: “ But if the animus really exists to remain there permanently, the fact that the motive of removal is to procure a divorce is immaterial.” There is some evidence in the case from which the court might find that it was not the intention of Edwin Fithian, the father, to remain permanently in Dakota. He distinctly swears, however, that he had no conversation with his daughter in respect to what was his intention and his intention, therefore, becomes wholly immaterial. A residence of ninety days is required in Dakota before an action for divorce can be commenced. That Alice Maude waited from 1887 to February, 1889, before commencing the action for divorce, that she lived there over a year thereafter before her marriage and after her marriage for over three years, until her death, is to our minds convincing evidence that the bringing of the action was not her sole purpose in removing to Dakota.
By section 2586 of the Code of Oivil Procedure it is provided that where an appeal is taken upon the facts, from a decree of a surrogate, “ The appellate court has .the same power to decide the questions of fact which the surrogate had.” In Matter of Warner (53 App. Div. 566) it was held by the Appellate Division of the fourth department that under this section the appellate court is not limited to the consideration of the question whether .there was sufficient evidence to support the decision of the surrogate, but the Appellate Division should decide for itself whether the surrogate correctly determined the facts. We are of the opinion that the finding of the surrogate is overborne by the clear weight of evidence ; that Alice Maude became a resident of Dakota in good faith and remained such for ninety days prior to the commencement of her action for divorce and that the court had full jurisdiction of such action under the laws of Dakota.
Third. With jurisdiction in the Dakota court to grant the decree established, as to Alice Maude, a citizen of that State, within that State, the marriage relation was dissolved. In Minor on Conflict of Laws (§ 88) it is said: “ It is admitted that within its own borders each State has sovereign control over all persons and property there situated, either permanently or temporarily, subject only to such restrictions as *276may be placed upon its courts by its own laws or constitution or by the constitution and laws of the United States. Subject to these restrictions, it is in its power to declare in any form of proceeding it sees fit that a married man, resident there or there temporarily or even not there at all, shall be there deemed no longer married and that whether the wife be within or without the'.State. This is purely a matter of municipal law with which private international law has no concern. And the status being a reciprocal one, since in that State the husband must be considered to be without a wife, so in that State the woman must be deemed to be without a husband.” This proposition has been distinctly held by our own Court of Appeals in Lynde v. Lynde (162 N. Y. 412). In speaking of a foreign decree obtained without personal service of process, the court says : “ The decree of divorce which the plaintiff obtained in Hew Jersey was effectual to determine her status as a citizen of that state towards the defendant.” This is also held in People v. Baker (76 N. Y. 78). In the State of Dakota then, after the pronouncement of the decree of divorce, the appellant’s mother was an unmarried woman and might lawfully contract marriage with the appellant’s father, and within that State at the time of his birth this appellant was clearly a legitimate child.
But the legitimacy of a child wherever questioned is determined by its legitimacy at the time and place of its birth. In Minor on Conflict of Laws (§ 98), in speaking of legitimacy, the. rule is stated thus : “ The general rule being that the law of the domicile regulates the status, if the father, mother and child are all domiciled at the timé of the child’s birth in the same State, the law of that State will fix the status. It is the law of the domicile at the time of the child’s birth which controls, for the claim of his legitimacy is based upon the circumstance of his birth in wedlock (though unlawful).” In Story’s Conflict of Laws (8th ed., § 105) the rule ■ is stated: “ In questions of legitimacy or illegitimacy the law of the place of the marriage will generally govern as to the issue subsequently born. If the marriage is valid by the law of that place, it will generally be held valid in every other country for the purpose of ascertaining legitimacy and heirship.” But this question is, we think, decisively settled by the case of Miller v. Miller (91 N. Y. 315) and the case of Bates v. Virolet (33 App. Div. 436). In each of these cases an *277illegitimate child was held to be made legitimate by the subsequent marriage <5f the parents in a country where such subsequent marriage legitimatized the issue theretofore born. This rule was held for the purpose of inheritance of real estate in the State of New York notwithstanding such child would not be legitimate under the laws of the State of New York. In Miller v. Miller (supra) the cases are carefully examined and the rule was thus announced:: “ Legitimacy which was conferred upon the plaintiff by the laws of." Pennsylvania, to which reference has been had, constituted a portion: of his rights and accompanied him wherever he might reside. Being; legitimate in the State of Pennsylvania, he continued so in every State and in every country where he chose to establish his residence. The rule seems to be well settled that the law of the domicile of origin governs the state and condition of a person in whatever country he may remove to. The status of legitimacy which arises under the law of one nation is recognized by other nations according to the authorities.”
The learned counsel for the respondent relies with assurance upon those decisions of our Court of Appeals which hold that a divorce in a foreign State as against a non-resident of that State who was not personally served therein or who did not appear is ineffectual to affect the status of either party beyond the borders of that State. This proposition is unquestionably held by the eases cited. In otir judgment, however, it is unnecessary to discuss them, for as we view it, they are wholly inapplicable to the. question here at issue. -Neither the status of Alice Maude or of Alberto Martinez is here in question. The status of the son of Alice Maude alone is at issue. If, ás has been recognized by our courts, the decree of divorce in Dakota was effective to establish the status of Alice Maude in Dakota, this child was there legitimate, and if, as has been shown, the legitimacy of this child at the time and place of its birth made it legitimate everywhere, the right to succession is established. Nor can there be any ground of public policy which would preclude our recognizing the legitimacy of this child in Dakota. In the first place under our own statutes a decree of divorce may be obtained in this State by a resident against a nonresident by the service of the summons by publication. The status then that is acknowledged to Alice Maude in Dakota after the *278divorce, is. the- same status which would -be -accorded to her in Our State, were the divorce granted by Our court. But more than that, to whatever -extent public policy may lead the courts of this State to question in this.-State the relation of Alice Maude to Richmond Kingman, the father of the infant, that, public policy has never led the courts of -our State -to a denial of the status of legitimacy to the issue of that marriage when legitimate where born. In this the humanity of our law which will protect the innocent from the wrongs of others outweighs any possible claim of public policy to the contrary, .and for the protection of this--child the . court, should not hesitate tó apply the general rule that his legitimacy in- Dakota determined his legitimacy here. Whatever, therefore, may be -the status of Alice Maude Fithian tinder our laws, the-.legitimacy of her son would seem undoubted'. As the legitimate son he is next-of Mn to -Ella Maria Fithian, named in the will.
It becomes unnecessary, therefore, to discuss the question raised as to the nature of the remainder created by the will. If -that remaim der be vested the appellant concededly would be entitled thereto whether legitimate or illegitimate, We have assumed for; the argument that the remainder is a contingent one and has passed to the next of kin of Ella Maria Fithian.
The judgment should,, therefore, be modified on the law. and the facts so as to provide for payment of one-half of the principal of said trust fund to appellant as next of kin of Ella Mafia Fithian, and as so modified affirmed, with costs of this appeal against Antonia Hill Benedict personally.
All concurred.
Decree modified on the law and facts so as to provide for -the payment of one-half of the principal of the trust fund and interest to appellant, and as so modified affirmed, with costs of appeal against Antonia Hill Benedict personally.