I regret that I am unable to concur in the opinion of the court in this case.
The issue to be determined depends upon the construction of G. L. (Ter. Ed.) c. 207, § 6 and § 10, both of which are set out in footnotes to the opinion.
I am in accord with the facts as set forth in the opinion but I differ in the inference which the court draws from such facts. I think it should be emphasized that, although Fraser told Mary Jane that they could not be married in Massachusetts, he also told her that it was all right to be married in New Hampshire. In her testimony Mary Jane insisted several times that she honestly thought that it was all right and legal to be married in New Hampshire.
The probate judge found as a fact that “Mary Jane acted in the full belief that the respondent Fraser had been divorced and was free to marry her in New Hampshire on December 1, 1950,” and that “after the marriage they lived together in Massachusetts as husband and wife, in good faith on her part, until January, 1954, when the respondent Fraser left her,” a period extending far beyond the time when the impediment to their marriage was removed.
The familiar rule should be applied that we do not reverse *10the findings of facts of the judge in these circumstances, unless they are plainly wrong. There was ample evidence to warrant his findings. The opinion in effect holds that the evidence does not support the findings as matter of law. This conclusion is apparently reached on the ground that because Mary Jane knew that she could not be married in Massachusetts it must necessarily be inferred that she purposely went to New Hampshire to be married there to evade the laws of our Commonwealth. I am unable to put this construction upon her conduct for it nowhere appears in the evidence that she had any such intention and I do not believe such an inference is permissible from the evidence. She may have gone into New Hampshire to avoid the law of our Commonwealth but there is no evidence that she went there to evade our law.
I am of opinion that Vital v. Vital, 319 Mass. 185, 193, 196, establishes the proposition that § 6 overrides § 10 in the present circumstances. It is clear from a reading of § 6 that if a person, in good faith, in the full belief that a former marriage of another has been annulled by divorce, marries the other, they shall be validly married after any impediment to such marriage has been removed, if they continue thereafter to live together as husband and wife in good faith on the part of one of them, and the issue of such marriage shall be considered the legitimate issue of both parents. Moreover, nowhere in § 6 does it appear that its remedial provisions are limited by any of the provisions of § 10. I do not believe that the restrictive provision of § 10 should be read into § 6 unless the evidence clearly shows that it was one of the reasons for entering into the marriage.J^See G. L. (Ter. Ed.) c. 207, § 4.1, “
The effect of § 6 has been considered by this court many times and it has generally been held that only good faith, full belief that the former marriage was annulled by divorce, and a living together in good faith after the removal of any *11impediment, are required to validate the second marriage. Lufkin v. Lufkin, 182 Mass. 476, 477-480. Turner v. Turner, 189 Mass. 373, 375-376. Gardner v. Gardner, 232 Mass. 253, 257-258. Hopkins v. Hopkins, 287 Mass. 542, 548. Vital v. Vital, 319 Mass. 185, 193, 196. Royal v. Royal, 322 Mass. 662, 663. Royal v. Royal, 324 Mass. 613, 615-616. See Atwood v. Atwood, 297 Mass. 229; Carmichael v. Carmichael, 324 Mass. 118, 121.
In the Turner case at page 375 it was said, “While one of the objects of the statute [R. L. c. 151, § 6, a predecessor of G. L. (Ter. Ed.) c. 207, § 6] is to protect persons who enter into the marriage relation in good faith, the broad general purpose of the statute is to provide against illegitimacy of children and to protect the public interests. Its purpose is to provide that the marriage ceremony, illegal at first by reason of the existence of an impediment, shall be regarded as taking place at the time the impediment is removed and as covering all marital relations thereafter assumed in good faith.” And at page 376 it was said, “And such a relation thus once sanctioned in the law, legitimatizes the children and leads to the protection of the moral welfare of the community.”
In the Gardner case it appeared that the wife of the second marriage went out of this Commonwealth to evade R. L. c. 151, § 7, a predecessor of G. L. (Ter. Ed.) c. 207, § 7, which required the consent of parents of a girl under eighteen to marry. The wife in that case went from this Commonwealth to New York where such consent was not required. At page 258 it was said by Chief Justice Rugg, “The good faith of a party to such a marriage ceremony is a fact. In reaching a conclusion, the point to be ascertained is whether there is actual honesty of purpose. The words ‘good faith’ in R. L. c. 151, § 6 [a predecessor of G. L. (Ter. Ed.) c. 207, § 6]], have no technical or refined meaning but are used in their ordinary signification. They do not require insight into circumstances calculated to arouse suspicion or to put sagacious persons on inquiry. They do not denote the standard of knowledge of the per*12son of ordinary prudence. A stupid person, who is free from any culpable design and acting with genuine integrity, may enter into a marriage in good faith, when a more worldly wise person of greater intelligence could not fail to be conscious of some degree of moral delinquency. The circumstances in the case at bar might well have put a shrewd woman on her guard. But they are not so clear as to require the conclusion that the respondent did not act in good faith. Lufkin v. Lufkin, 182 Mass. 476. Minot v. Burroughs, 223 Mass. 595, 604. The respondent’s ignorance of the law and action upon that ignorance, while it would not protect her from the consequences if that were the only matter involved, does not make imperative a finding that she did not at the same time conduct herself with good faith. The purpose of the statute is to provide against illegitimacy of offspring and to protect the public interests. It is designed in part to avert the stigma of illegitimacy from innocent children when one parent is blameless of any conscious transgression of the laws regulating marriage. Turner v. Turner, 189 Mass. 373. Green v. Kelley, 228 Mass. 602. The determination of the question, whether the respondent went from North Adams to Hoosac Falls to be married and returned to live in North Adams in good faith without any purpose to circumvent our marriage laws and honestly thinking that she might do so legally, well might have depended in large degree upon her appearance and manner of testifying. The decision of the judge of the Land Court in her favor on this point cannot be pronounced erroneous in law.”
The opinion in no way distinguishes any of the cases above referred to. I agree with the law as expressed in the cases like Ewald v. Ewald, 219 Mass. 111, but the results in those cases are all predicated upon the principle that one who knowingly enters into a marriage with purposeful intent to evade the laws of our Commonwealth is guilty of bad faith and cannot avail himself of § 6. In the circumstances of those cases the party seeking relief was bound by the familiar equity rule that such a party must come *13into court with clean hands. In the instant case no such rule is involved.
I believe that the cases cited in the opinion to support the principle that c. 207, § 10, alone should be relied upon, do not as matter of law justify such a conclusion. All of those cases may be distinguished for one reason or another. In several relief was denied because the petitioner did not come into court with clean hands. Ewald v. Ewald, 219 Mass. 111. In others c. 207, § 6, was not even considered nor discussed. In another there were no findings of facts such as we have in the case at bar. Atwood v. Atwood, 297 Mass. 229, appears to support my views rather than those expressed in the opinion.
The result of the opinion is contrary to the oft expressed statement that the purpose of § 6 is to provide against illegitimacy and to protect the public interest.
I am of opinion that full weight and credit should be given to the findings of the judge of the Probate Court as to the good faith of one of the parties who enters into a marriage prohibited by § 10. Otherwise § 6 is of little or no effect.
Finally I am of opinion that Carol was fully aware of all the circumstances of Mary Jane’s marriage when she married Fraser. It is plain that she and Fraser discussed the situation on many occasions and both sought the advice of a lawyer. It is fair to infer that they were advised that if Fraser brought proceedings to annul the marriage to Mary Jane he could not prevail. Ewald v. Ewald, 219 Mass. 111. Korostynski v. Korostynski, 328 Mass. 6. The result was the marriage of Carol and Fraser so that she could institute these proceedings. I do not think that what Fraser could not do directly Carol should be permitted to do indirectly, particularly when the status of the acknowledged son of Mary Jane and Fraser is involved and his future may be seriously affected.
I think the decree of the probate judge should be affirmed.
General Laws (Ter. Ed.) c. 207, § 4, reads: “A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six . . ., shall be void” (emphasis supplied).