(dissenting)—As the majority says, the question that we are called upon to decide is one of first impression in this state.
I freely concede that the respondents, the heirs at law of the estate of Alfred Englund, were strangers to the divorce proceeding between the appellant and Chris Tashos, and that the divorce proceeding and decree did not affect any rights or interest which the respondents had acquired prior to the rendition of that decree. In fact, they, could have had no concern in the affairs of the appellant and Mr. Tashos or any right or cause to attack their divorce proceeding until appellant claimed that, having been the wife of Alfred Englund, she as his widow had a prior right to administer his estate.
The respondents attack the validity of appellant’s marriage to Alfred Englund. In my opinion, they have a right so to do. The rule as stated in 35 Am. Jur. 221, Marriage, § 58, is:
“The.voidance of a marriage can be maintained in any proceeding in which the fact of marriage may be material, either directly or collaterally, in any court and between any parties at any time, whether before or after the death of either or both the husband and wife; upon mere proof of the facts *717rendering such marriage void, it will be disregarded or treated as nonexistent by the court.”
In our recent case, In re Romano's Estate, 40 Wn. (2d) 796, 805, 246 P. (2d) 501 (1952), it is stated:
“It has always been recognized at the common law that the invalidity of void marriages could be maintained in any proceeding, either direct or collateral, before or after the death of the parties.”
We have a statute which states:
“A divorce obtained in another jurisdiction shall be of no force or effect in this state if both parties to the marriage were domiciled in this state at the time the proceeding for divorce was commenced.” Laws of 1949, chapter 215, § 20, p. 704 (RCW 26.08.200).
This statute is an expression of public policy. Its wisdom may be debatable (see 24 Wash. L. Rev. 259), but its intent seems unmistakable. It is part of the uniform divorce recognition act, and no plainer language could have been devised by the commission on uniform laws to accomplish its avowed purpose. See the commissioners’ notes with reference to this particular section, 9 U. L. A. 364 et seq. It is there stated (p. 365):
“The Act has been framed upon the theory that it is desirable to discourage rather than to encourage migration in pursuit of a divorce; that specific statutory refusal to recognize extrastate divorces obtained by domiciliaries of the state enacting the statute will reduce tourist divorce-seeking, particularly as the perils of that practice become generally recognized; and that recognition to extrastate divorces obtained by domiciliaries should be refused except as specifically required by the Constitution of the United States, since any narrower policy both would be difficult to formulate and would introduce factors so complex as to endanger the goal of uniformity.”
In Ainscow v. Alexander, 28 Del. Ch. 545, 561, 39 A. (2d) 54 (1944), it is said:
“Whether legal restrictions on human desires imposed by traditional religious and social creeds are wise, whether the enlarged and pragmatical view held by some with respect to facile dissolution of the marriage tie requires a greater *718tolerance of foreign decrees of divorce obtained by domiciliaries of this State, are matters within the competency of the legislature to determine; and where the legislature has seen fit to declare a strict public policy in this regard, it is not within the power of the court to whittle it-away by decision.” (Italics mine.)
The majority opinion demonstrates that we in Washington are better whittlers.
No citation of authority is needed to establish that a bigamous marriage is void db initio. Had there been no divorce proceeding between appellant and Mr. Tashos, the respondents would merely have had to prove the appellant’s marriage to Mr. Tashos in order to establish that her marriage to Englund was void. However, appellant urged that she had an Idaho decree of divorce from Mr. Tashos. An attack upon her Idaho divorce proceeding and decree was therefore incidental but necessary to the attack upon the validity of her marriage to Alfred Englund.
The question presented was: Can the validity of a divorce decree be attacked by a person whose property rights are affected not by the divorce decree but by the subsequent marriage of one of the parties to that decree who claims, in consequence thereof, to be capable of entering into a valid marriage?
The trial court, assuming that the legislature meant what it said in § 20 of chapter 215, Laws of 1949, quoted supra, permitted an attack upon the validity of the Idaho decree and having found on what seems to me practically conclusive evidence that neither the appellant nor her husband, Chris Tashos, was domiciled in Idaho at any time during the divorce proceeding, concluded that there was no valid divorce and that, consequently, appellant’s subsequent marriage to Alfred Englund was void and she had no right to be administratrix of his estate. Accordingly, the court removed her as administratrix.
I find no exception in the statutes or in public policy which would bar the respondents from proving that the appellant and her husband, Chris Tashos, were domiciled in *719this state at the time she commenced her proceedings for a divorce in Idaho.
The majority holds that the attack upon the validity of the Idaho divorce decree should not have been permitted because the decree did not affect any rights or interests which the respondents had acquired prior to its rendition. The majority relies upon the case of Crockett v. Crockett, 27 Wn. (2d) 877, 181 P. (2d) 180 (1947). There the divorce under attack was only voidable and the language used was directed at the point that, the divorce decree being only voidable, the death of the party having the sole right to challenge it ended further inquiry.
There is a South Carolina case squarely in point, Nimmer’s Estate v. Nimmer, 212 S. C. 311, 47 S. E. (2d) 716 (1948). There, as here, the widow claimed a preferred right to administer the decedent’s estate, which preferred right was, as here, challenged by his heirs at law, who alleged that the supposed widow had a living husband from whom she had not obtained a valid divorce. The court of common pleas (York county) permitted an attack upon the validity of the Georgia divorce upon which she relied, and upheld the contention of the heirs at law that the Georgia court had acquired no jurisdiction. The widow appealed, asserting, as appellant does here, that the heirs at law of the decedent were not parties to the divorce proceeding, were not in privity with any person who was a party thereto, and could not collaterally attack it. The South Carolina supreme court held that the heirs could attack the validity of the Georgia decree upon jurisdictional grounds and that, by their evidence, they had established that the decree was void because neither of the parties to the divorce proceeding had ever been a resident of the state of Georgia. In my opinion, the South Carolina court reached the correct conclusion.
The cases of Dietrich v. Dietrich, 41 Cal. (2d) 497, 261 P. (2d) 269; Union Bank & Trust Co. v. Gordon, 116 Cal. App. (2d) 681, 254 P. (2d) 644; and In re Romanski’s Estate, 354 Pa. 261, 47 A. (2d) 233, are cited by the majority. It is *720universally recognized that a litigant, by his own conduct, can estop himself from invoking a statute such as the one with which we are here concerned. These three cases are estoppel cases and, as such, are beside the point with which we are here concerned.
The majority seems to make a point of the fact that appellant and Mr. Tashos are both alive and neither of them is attacking the validity of the Idaho divorce. The fact that they have perpetrated a fraud on the Idaho court and are apparently satisfied with the result seems to me no justification for holding valid what the evidence shows to have been a bigamous marriage. The really significant point with reference to the fact that both appellant and Mr. Tashos are alive and satisfied with the decree is that if either of them was domiciled in the state of Idaho when the divorce proceeding was commenced, appellant should have had no difficulty in so proving; death had silenced no party to the transaction.
In view of the plain language of our statute, I would affirm the trial court and leave the whittling to the legislature.
Hamley, Donworth, and Weaver, JJ., concur with Hill, J.
February 8,1955. Petition for rehearing denied.