Gardner v. Gardner , 232 Mass. 253 ( 1919 )

Rugg, C. J.

This is a petition for the registration of the title to land. The question of title turns upon the validity of the marriage of the respondent with Horace S. Gardner, who died in 1915, intestate, seised of the locus. The petitioner was married to the deceased in 1893, but because of his desertion procured a divorce nisi from him on January 16, 1901, which became absolute six months later. In the meantime, in November, 1900, the deceased under an assumed name went through a marriage ceremony in New York with the respondent, then an eighteen year old school girl living at home in Pennsylvania. In the following April, revealing to her his real name, he told her to go home to her father and wait until he sent for her to come to his home in North Adams in this Commonwealth, where he was going on business, and would remarry her under his proper name. He then went to his father’s home and brought in Berkshire County a libel for divorce against the petitioner. The petitioner, although served with process, paid no attention to it because she had already procured a divorce herself. The deceased then sent for the respondent, who came to his father’s house in North Adams, where he for the first time told her of his marriage to the petitioner, but stated that he had just obtained a divorce. On July 8, 1901, the deceased under his right name obtained a decree nisi for a divorce from the petitioner. On July 15,1901, one day before the petitioner’s decree nisi became absolute, the deceased took the respondent to Hoosac Falls in New York and there was married to her under his right name. In the certificate of this marriage his residence was described as North Adams, Massachusetts, and her residence as Scranton, Pennsylvania where she was born although she had not lived there for several years before her first marriage ceremony. This certificate also described her status as “married” but that this was the first marriage of either party. The judge of the Land Court further found that “She also knew that he had lived with still another woman, and that there was a child by her. She made no inquiries whatever in regard to his divorce, but took his word about it. She knew that she could not be remarried in Massachusetts without a license, and that a license could not be obtained without her parents’ consent, because she was still under age. She was afraid to tell her father that her first marriage had been under an assumed name until after the second ceremony had been performed. She therefore went to New York State for the second marriage as she had done for the first, because no license was required there.” Thereafter they lived in this Commonwealth, where four children were born to them, and the deceased bought the locus. When he died the deceased left the petitioner and one son by her, (who has conveyed to her his interest in the locus,) and the respondent and her four children.

The finding of the Land Court is that at the time of the remarriage in July, 1901, both the deceased and the respondent were residents of this Commonwealth. The facts set forth in the finding justify this inference. Intention always is an important factor in determining domicil. Whately v. Hatfield, 196 Mass. 393. Emery v. Emery, 218 Mass. 227. There are not enough facts in this record to require a reversal upon this point.

The pivotal question is whether, in entering into the marriage of July, 1901, both parties, being resident in this Commonwealth and intending to return here to live, went to New-York to have their marriage solemnized with an intent to evade any of the provisions of the first five sections of R. L. c. 151, contrary to § 10 of that chapter. If they went to New York, both knowing of the impediment to their marriage in this Commonwealth and with a purpose to avoid the force of the laws of this Commonwealth and to return here to live, then that marriage would be void here. Tyler v. Tyler, 170 Mass. 150. Ewald v. Ewald, 219 Mass. 111. If, however, one of them was innocent of any such intent and one alone entertained this vicious purpose, then the inhibition of § 10 does not apply. Whippen v. Whippen, 171 Mass. 560. 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, 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 person 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.

Order of Land Court denying registration affirmed.