Turner v. Turner

• Decision Date: 21 October 1905
• Citation: 189 Mass. 373,75 N.E. 612
• Parties: TURNER v. TURNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 373

75 N.E. 612

TURNER v. TURNER.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1905

COUNSEL

W. A Gile and C. S. Dodge, for libelant.

OPINION

HAMMOND J.

This is a petition for nullity of marriage. At the hearing it appeared that at the time of the marriage, which occurred September 16, 1897, the libelee had a wife then living. Subsequently to this marriage the first wife obtained a divorce from the libelee, and in January, 1899, she died. In his application for a license for the second marriage, the libelee asserted that this was to be his first marriage; and the libelant entered into the marriage in good faith, without knowledge of the former marriage, relying upon the representation of the libelee that he was then to marry for the first time. The parties continued to live together as husband and wife in good faith on the part of the libelant until March, 1904, when the libelee deserted her and had continued such desertion up to the time of the hearing. The libelant did not know of the prior marriage, nor of the divorce or death of the former wife, until after the desertion; nor did she live with the libelee as wife or co-habit with him after she learned of his prior marriage. There have been no children by this second marriage.

The main question is whether the marriage, although illegal at the time it was solemnized, became legal by virtue of Rev Laws, c. 151, § 6. This statute, which is a continuation of St. 1895, p. 476, c. 427, is as follows: 'If a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.' The case is within the literal terms of the statute, namely, a marriage illegal by reason of the existence at the time of a former wife of the husband, but nevertheless entered into in good faith on the part of the wife, who has no knowledge of the prior marriage, the removal of the...