dissenting.
I feel somé doubts in this case which I think that I ought *443to state. I understand it to be assumed, as it must be admitted, that James Travers and Sophia V. Grayson lived together for many years, calling themselves man. and wife, when they were not man and wife and probably knew that they were not naan and wife. This condition of things lasted from 1865, the time of the pretended marriage in Virginia to which their cohabitation referred for its justification, until 1883, the year of James Travers’ death. So long as they lived in Maryland, that is until some time in 1883, if they had attempted to make -their union more legitimate by simply mutual agreement they could not have done it. Therefore the instances of- James Travers calling Sophia his wife during that period may be laid on one side. ■
Just before he died Travers moved to New Jersey and there made his will. As in Maryland, he spoke of his wife in that instrument, and as I .understand it, the decision that he was married must rest wholly on this recognition and the fact that in New Jersey, a . marriage may be made without the intervention of a magistrate. I do not see how these facts can be enough. Habit and repute might be evidence of a marriage when unexplained. But they must be .evidence of a contract, however informal, to have any effect. When an appellation shown to have been used for nearly eighteen years with conscious want of .justification continues to be used for the last month of lifetime, I do not see how the fact that the parties have crossed a state line can make that last month’s use evidence that in that last moment the parties made a contract which then for the’first time they could have made in this way.
It is imperative that a contract should have been made in New Jersey. Therefore even if both parties had supposed that they were married instead of knowing the contrary it would not have mattered. To live in New Jersey and think you are married does not constitute a marriage by the law of that State. If there were nothing else in the case it might be evidence of marriage, but on these facts the belief, if it was entertained, 'referred to the original inadequate ground. *444Collins v. Voorhees, 47 N. J. Eq. 555. A void contract is not made over again or validated by being acted upon at a time when a valid contract could be made. When a void contract is acted upon, the remedy, when there is one, is not on the contract, but upon a quasi-contract, for a quantum meruit. There is no such alternative when a marriage fails.