Smith v. Goldsmith

Citation134 So. 651,223 Ala. 155
Decision Date05 March 1931
Docket Number8 Div. 248.
PartiesSMITH v. GOLDSMITH ET AL.
CourtSupreme Court of Alabama

Rehearing Denied May 28, 1931.

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bill in equity by L. B. Goldsmith and M. M. Hutchens, as executors of the estate of Robert Earl Smith, deceased, against Irene Kennemer Smith and others, for removal of administration of the estate from the probate court to the circuit court in equity, with a petition by Irene Kennemer Smith to have exemptions set aside. From a decree dismissing the petition petitioner appeals.

Reversed and remanded.

Watts &amp White, of Huntsville, for appellant.

Lanier & Pride and Brickell & Johnston, all of Huntsville, for appellees.

GARDNER J.

But one question is presented by this appeal. Is Irene Kennemer Smith (so designated in the present record and in the will of decedent) the lawful widow of Robert Earl Smith, deceased? The two divorce decrees against said Robert Earl Smith were each silent as to his right to remarry and no such direction has been made by any subsequent order of the court.

Under the previous decisions of this court (construing section 7410, Code 1923, in connection with sections 3440 and 3441) the marriage in Alabama of petitioner (Irene Kennemer Smith) and Robert Earl Smith would have been void. Barfield v. Barfield, 139 Ala. 290, 35 So. 884; Gulf States Steel Co. v. Witherspoon, 214 Ala. 529, 108 So. 573; Evans v. Evans, 200 Ala. 329, 76 So. 95.

But the marriage took place in the state of Tennessee, and the applicable principle of law, generally recognized, is found stated in 38 Corpus Juris, 1276, as follows:

"The general rule is that the validity of a marriage is determined by the law of the place where it was contracted; if valid there it will be held valid everywhere. *** An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the public policy of the domicile of the parties, in respect of polygamy, incest or miscegenation, or otherwise contrary to its positive laws."

Much evidence was offered tending to show the last divorce decree against Robert Earl Smith was on the ground of adultery with petitioner, and the statute of Tennessee was introduced which reads as follows: "When a marriage is absolutely annulled, the parties shall severally be at liberty to marry again; but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed, during the life of the former husband or wife." Shannon's Code, § 4228.

It is insisted, therefore, that the marriage was invalid under the law of Tennessee. But this statute had reference to those cases in which the decree of divorce was granted in that state, and not in other jurisdictions, nor with reference to those domiciled elsewhere.

Viewed otherwise from a practical standpoint, many obstacles may be noted in the application of such a statute. Illustrative is the instant case where the Tennessee court must ascertain that the person named "Vivian" in the evidence in the Alabama divorce suit was in fact this petitioner. But this aside, we think the opinion of the Tennessee court in Newman v. Kimbrough (Tenn. Ch. App.) 59 S.W. 1061, 52 L. R. A. 668, very clearly expresses the view that such a statute will not invalidate the marriage relation of those domiciled in another jurisdiction, though the divorce was obtained in the Tennessee courts. This is in accord with the general rule. 5 R. C. L. 1000. And upon the interpretation of such statutes as to the jurisdiction granting the divorce, the Supreme Court of Maine, in Inhabitants of Phillips v. Madrid, 83 Me. 205, 22 A. 114, 115, 12 L. R. A. 862, 23 Am. St. Rep. 770, said: "Our statute applies only to divorces granted by the courts in this state. It has no reference to a decree granted in another state." The holding of the Iowa court in Dudley v. Dudley, 151 Iowa, 142, 130 N.W. 785, 32 L. R. A. (N. S.) 1170, is to like effect. See, also, Dimpfel v. Wilson, 107 Md. 329, 68 A. 561, 13 L. R. A. (N. S.) 1180, 15 Ann. Cas. 753; State v. Bentley, 75 Vt. 163, 53 A. 1068. The Tennessee decisions relied upon by appellees (Newman v. Kimbrough, supra, and Pennegar v. State, 87 Tenn. 244, 10 S.W. 305, 2 L. R. A. 703, 10 Am. St. Rep. 648), involved cases where the parties resided in that state, and the divorces were obtained in that jurisdiction.

The parties to this marriage were residents of Alabama, to which state they immediately returned and remained domiciled, and the divorce decree was by the Alabama court. We are therefore of the opinion the prohibition of the Tennessee statute has no application to this case. The conclusion follows that the marriage was valid by the laws of Tennessee.

Upon the subject here under consideration the following observations found in Kent's Commentaries (vol. 2, 14th Ed. p. 92) have met with the approval of the decided weight of authority:

"As the law of marriage is a part of the jus gentium, the general rule undoubtedly is that a marriage valid or void by the law of the place where it is celebrated, is valid or void elsewhere. An exception to this rule is stated by Huberus, who maintains that if two persons, in order to evade the law of Holland, which requires the consent of the guardian or curator, should go to Friesland, or elsewhere, where no such consent is necessary, and there marry, and return to Holland, the courts of Holland would not be bound by the law of nations to hold the marriage valid, because it would be an act ad eversionem juris nostri. In opposition to this opinion, we have the decision of the court of delegates in England in 1768, in Compton v. Bearcroft, 2 Hagg. Cons. 443, 444, where the parties being English subjects, and one of them a minor, ran away, without the consent of the guardian, to avoid the English law, and married in Scotland. In a suit in the spiritual court to annul the marriage, it was decided that the marriage was valid. This decision of the spiritual court has been since frequently and gravely questioned. Lord Mansfield, a few years before that decision of the delegates, intimated pretty strongly his opinion in favor of the doctrine in Huberus, though he admitted the case remained undecided in England. The settled law is now understood to be that which was decided in the spiritual court. It was assumed and declared by Sir George Hay in 1776, in Harford v. Morris, 2 Hagg. Cons. 428-433, to be the established law. This principle is that in respect to marriage the lex loci contractus prevails over the lex domicilii, as being the safer rule, and one dictated by just and enlightened views of international jurisprudence. This rule was shown, by the foreign authorities referred to by Sir Edward Simpson in 1752, in the case of Scrimshire v. Scrimshire, 2 Hagg. Cons. 412, 416, to be the law and practice of all civilized countries by common consent and general adoption. It is a part of the jus gentium of Christian Europe, and infinite mischief and confusion would ensue with respect to legitimacy, succession, and other rights, if the validity of the marriage contract was not to be tested by the laws of the country where it is made. This doctrine of the English ecclesiastical courts was recognized by the Supreme Court of Massachusetts in Medway v. Needham (16 Mass. 157, 8 Am. Dec. 131; Putnam v. Putnam, 8 Pick. 433), and though the parties in that case left the state on purpose to evade its statute law, and to marry in opposition to it, and, being married, returned again, it was held that the marriage must be deemed valid, if it be valid according to the laws of the place where it was contracted, notwithstanding the parties went into the other state with an intention to evade the laws of their own. It was admitted that the doctrine was repugnant to the general principles of law relating to other contracts; but it was adopted in the case of marriage, on grounds of public policy, with a view to prevent the public mischief and the disastrous consequences which would result from holding such marriages void. It was hinted, however, that this comity, giving effect to the lex loci, might not be applied to gross cases, such as incestuous marriages which were repugnant to the morals and policy of all civilized nations."

The general rule has its exceptions, one of incestuous marriages noted in the foregoing quotation, and others heretofore adverted to of polygamy, miscegenation, and where otherwise contrary to some positive statute or pronounced public policy of the state. We are not here concerned with any exception to the general rule save that of the latter class; that is, with reference to any pronounced public policy of the state as disclosed by statute.

It is urged that section 7410 of the Code 1923, construed in connection with section 3440 (our bigamy statute), declares the public policy of the state, leading to the conclusion of nullity of any marriage in contravention thereof, though contracted beyond this jurisdiction. But for a violation of the bigamy statute the second marriage must be unlawful. Parker v. State, 77 Ala. 47, 54 Am. Rep. 43.

The very question at issue in the instant case is the validity of the marriage, and the argument for appellees must at last rest upon a proper interpretation of section 7410, under the provisions of which, as disclosed by the undisputed proof decedent was not permitted to again marry in this state. The case, therefore, resolves itself into a single question: Is this statute to be given extraterritorial effect? It is to be noted in the first place that the divorce is absolute, and statutory or decretal restrictions aside, both parties would be free to again contract marriage. 19 Corpus Juris, 182; note Boykin v. Rain, 65 Am. Dec....

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