shall render the purported marriage absolutely void.'
Plaintiff contends that a strict construction of this statute, which is in derogation of the common law, would exclude from its operation all cases where a marriage license is secured by the contracting parties and the issuance of such license is followed by a solemnization of the marriage by any party authorized to perform marriages. In the instant case, if this contention be valid, a marriage relationship would be created immediately upon the disappearance of the barrier or impediment to the marriage, existent at the time of its performance.
It is true that prior to the enactment of the 1939 statute, the law would have recognized a status such as that occupied by the decedent and the plaintiff, subsequent to July 6, 1943 (when the decree of divorce became final), as valid marriage. Chamberlain v. Chamberlain, 68 N.J.Eq. 414, 59 A. 813; Margulies v. Margulies, 109 N.J.Eq. 391, 157 A. 676; Dolan v. Wagner, 95 N.J.Eq. 1, 125 A.2. This is based upon the presumption of an intention on the part of both parties after the impediment is removed, to live in a state of common law marriage.
Plaintiff contends that while non-ceremonial common law marriages are abolished by the Act of 1939, such marriages, when initiated by a solemnization after issuance of a license, are legalized as valid marriages provided the parties continue to live together as husband and wife. Effectively this would mean that the law, as interpreted by the cases cited, remains controlling under the facts as set forth in the stipulation.
However compelling may be the reason in any particular situation, and however grave the hardships, it seems to the court that such a construction of the statute would contravene the logical and legal requirements of the language of the Act and the purposes for which it was passed.
A marriage such as that entered into by the plaintiff and William C. Brown, while his prior marriage was still in force, is a nullity. Rooney v. Rooney, 54 N.J.Eq. 231, 34 A. 682; Sparks v. Ross, 79 N.J.Eq. 99, 80 A. 932; In Re Franchi's Estate, 119 N.J.Eq. 457, 182 A. 887. No amount of civil or religious ceremonies even after the issuance of a license can make it anything else.
The contention of the plaintiff would have the removal of the impediment to a legal marriage constitute a validation of the originally invalid ceremonial marriage, which is nowhere provided for in the Statute. It could by no means be said to revive and legitimize a null and void marriage under any circumstances, for a nullity being something which never existed cannot be 'revived.'
Whatever merit the plaintiff's claim may be said speciously to possess, is dissipated when it is realized that to lend weight to it the ceremony must be said to be operative not in the present but in the future. At the time of its performance, the marriage was null and void and the effectiveness of such ceremony was not saved for application in future contingencies.
In view of the court's finding as to the status of the plaintiff, it would seem that it may not declare plaintiff to be the lawful widow of the deceased veteran. And this being determined, it follows that she may not be declared entitled to the proceeds of the insurance policy in question.
Here there is no such question of estoppel as was raised in Barker v. United States, D.C., 3 F.Supp. 545, reversed in 5 Cir., 70 F.2d 1002, where the representative of the decedent's estate was held subject to the same infirmity of defense as the decedent would have suffered had he raised the same question if he had not died.
In Mixon v. Mixon, cited by the plaintiff, 203 N.C. 566, 166 S.E. 516, and in Schiefer v. United States, D.C., 52 F.2d 527, the arguments are made that the preference of the deceased veteran and the innocence of the surviving spouse are the decisive factors in arriving at the solution of the basic question. But while the preference of the veteran and the suffering of an innocent victim in individual cases may be harshly existent facts, they may not be made the basis in adjudications for effecting alteration of the plainly expressed intent of the law.
In view of these conclusions, the motion of the plaintiff for summary judgment in her favor is denied, and there will be an adjudication that the proceeds of the policy of insurance are payable to the contingent beneficiary, Nellie Brown.
Let there be an order submitted to this effect, without costs.
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