William A. Goldman died October 13, 1931, leaving appellant as his surviving wife with whom he had years before contracted a common law marriage. On October 21, 1931, eight days after her husband's death, appellant went through a marriage ceremony with her son-in-law, E.J. Ganz in Brook County, West Virginia. She later moved to St. Petersburg, Florida, and on November 22, 1932, was married to Edward C. Dithrich who dies testate June 19, 1933, possessed of considerable real and personal property.
In due course, appellant dissented from the terms of Dithrich's will which was filed for probate in Pinellas County and exercised her election to take under the law rather than under the will. This suit was instituted by appellee individually and as representative of the heirs of the testator for the purpose of annulling the marriage between appellant and Edward C. Dithrich on the ground that at the time said marriage was contracted, appellant had previously entered into the marital relation with E.J. Ganz in West Virginia, that the said E.J. Ganz was still living, and that appellant's marriage with him had not been dissolved at the time she was married to the testator.
As defense to the suit to annul, appellant contends that her West Virginia marriage with E.J. Ganz was void ab initio by reason of the fact that said Ganz was a married man at the time of said marriage and was thereby incapacitated to contract a valid marriage. Appellee contends on the other hand that under the law of West Virginia, such a marriage was voidable only and not void, and hence *Page 410 good until annulled by a decree of a court of competent jurisdiction.
The Chancellor found for appellee and entered his decree annulling the marriage. A petition for rehearing was filed wherein it was alleged that a decree annulling the West Virginia marriage between appellant and Ganz had been entered several days after the entry of the final decree annulling the marriage between Appellant and Dithrich and contending that such annulment related back to the date of the Ganz marriage, thus making appellant an unmarried woman at the time of her marriage to Edward C. Dithrich and legalizing the said marriage. The petition for rehearing was denied, the court again holding that the West Virginia marriage between appellant and Ganz was voidable only and hence valid until set aside by the Court but that the decree annulling said marriage was not retroactive so as to validate her marriage with Dithrich. This appeal is from the final decree and the order denying the petition for rehearing.
The vital question to be adjudicated is the legal status of the marriage in West Virginia between Appellant and E.J. Gunz.
The general rule is that marriage between parties sui juris is to be concluded by the law of the place where consummated. Story, Conflict of Laws (1st Ed.) 103, Loughran v. Loughran,292 U.S. 216, 54 Sup. Ct. 684, 78 L. Ed. 1219; Henderson v. Henderson,265 Mo. 718, 178 S.W. 175. If there was a marriage between appellant and E.J. Ganz its legality will be determined by the law of West Virginia as will the legality of her marriage with Edward C. Dithrich be determined by the law of Florida.
The West Virginia Code of 1916, page 916, Chapter 63, Section 10, contains the following:
"No woman shall marry her father, grand-father, step-father, *Page 411 brother, son, grand-son, half-brother, uncle, daughter's husband, husband's son, or his grand-son, or step-son, brother's son, or step-son, or husband of her brother's or sister's daughter. (Acts 1872, c. 89; 1972-3, c. 161.)"
At page 920, Chapter 64, Section 1, the same code contains the following:
"All marriages between a white person and a negro; all marriages which are prohibited by law on account of either of theparties having a former wife or husband then living; all marriages which are prohibited by law on account of consanguinity or affinity between the parties; all marriages solemnized when either of the parties was insane or incapable from physical causes of entering into the marriage state, or under the age of consent, shall, if solemnized within this State, be void from thetime they are so declared by a decree of divorce or nullity. (Code Va. 1860, p. 529.)"
From a reading of the foregoing, we must conclude that if there was in fact a valid marriage between appellant and E.J. Ganz in West Virginia, it was void only from the time it was so declared by decree of divorce or nullity in a competent court.
In our view, the pretended marriage between Appellant and E.J. Ganz was a nullity in its inception and was without binding force and effect. There is no dispute with reference to the facts of the transaction. It is shown that the marriage license was issued in the name of William A. Goldman, the deceased husband of Appellant, and in the name of Mary M. Stayer, who is in fact the appellant. E.J. Ganz, the son-in-law of appellant whose wife was living and from whom he was not separated, went with her (appellant) to procure the license and went through the marriage ceremony with her which was regularly performed, *Page 412 though he (Ganz) impersonated William A. Goldman.
Appellant contends that she went through this pretended marriage with Ganz because her former marriage with Goldman was a common law marriage, that common law marriages were not recognized by law in West Virginia and that she wanted the record to show that she had a ceremonial marriage with Goldman to remove the stigma of bastardy from her daughter, the wife of E.J. Ganz, who was a child of her marriage with Goldman. Appellee contends on the other hand that her marriage with Ganz was a ruse to clear the record and enable her to secure a portion of the estate of W.A. Goldman, which she could not do as his common law wife. The fact that the date of the certificate was changed so as to read October 21, 1930, one year previous to its actual date and presented to the representatives of Goldman's estate for the purpose of securing a share therein gives support to the latter contention.
For the purpose of this case, it matters not which of these contentions is true. It is shown that Ganz and his wife were living together at the time, that he and appellant never lived or cohabited together nor ever intended to, that their pretended ceremonial marriage was in no sense actuated of love, affection, the purpose to establish a home and family or any other fact essential to constitute the marital state. By the admission of the parties the whole transaction was foreign to the vital purpose of marriage and we fail to find a single element of a valid marriage in it.
To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to *Page 413 the prevailing social mores. The marriage in question offends against these requirements.
It is conclusively shown that there was no intention on the part of either party to enter into a life relation or to assume the responsibility imposed by law on those becoming parties to the banns. In fact, it may be reasonably inferred that neither party had any intention of giving effect to the marriage. Furthermore in view of the traditional gulf of infelicity that is said to separate the affections of mother-in-law and son-in-law, to contemplate the one in good faith, taking the other "for better or for worse" is a societal phenomenon that we are not ready to accept and the facts in this record are too skimpy to make it register in our sanctum of concepts. It was nothing more than a jest or mock marriage which is of no effect and there was no possibility of ratification by cohabitation or change in the status of the parties. McClung v. Terry, 21 N.J. Eq. 225.
So far as the record discloses, the marriage between appellant and Edward C. Dithrich was entered into in good faith and was successful. It was regular in form and the parties lived together happily until the death of the latter. The common law marriage was no impediment to it. This assault was precipitated by heirs of the deceased to defeat the claim of appellant to an interest in his estate.
We are not convinced that proper showing has been made to invalidate said marriage so the decree below is reversed.
Reversed.
ELLIS, C.J., and BUFORD, J., concur.
WHITFIELD, P.J., and CHAPMAN, J., concur in the opinion and judgment.
*Page 414BROWN, J., dissents.