This matter comes before me on cross motions for summary judgment. There is no factual dispute.
On November 11, 1928 G (now deceased) married plaintiff A. Two children, plaintiffs B and C were born of that marriage. On August 7, 1947 G obtained a Mexican mail order divorce. A had no participation in those proceedings. On October 29, 1947 G married defendant D in Connecticut before a justice of the peace. Prior to August 7, 1947 two children, concededly sired by G, were born to D. They are defendants E and F. G died intestate on October 18, 1962. On November 14, 1962 letters of administration were granted to D. They were subsequently revoked on application of A on March 8, 1963.
The single question presented for decision here is whether defendant children E and F, who were born out of wedlock, are to be deemed legitimate under the laws of descent and distribution. An answer to this question can only be given by resolution of an underlying question as to whether children born out of wedlock may be deemed legitimated by a subsequent ceremonial, void and bigamous marriage of the natural parents.
As a matter of statutory construction, the issue here presented is whether the word "marry," as used in the provisions of N.J.S. 3A:4-7, should be read to mean "valid marriage."*fn1 It is apparent that the Mexican mail order divorce of August 1947 was invalid, thereby rendering the marriage of G and D bigamous. Tonti v. Chadwick, 1 N.J. 531 (1949).
There are four statutes which relate to the question of legitimacy presented here. The first is N.J.S. 3A:4-7.*fn1 The
predecessor to this statute was R.S. 3:5-8 which provided as follows:
"3:5-8. If the father and mother of a child born out of lawful wedlock subsequently enter into the bonds of lawful wedlock and cohabit thereafter as husband and wife and such child shall have resided with and been recognized and treated by such parents as their child, such child shall be entitled to share in the estate of such father and mother equally with children born of a lawful marriage of the intestate. * * *" (Emphasis added)
R.S. 9:15-1 is a general legitimation statute which provides for legitimation "by the intermarriage of * * * natural parents," along with the requirement of recognition.*fn2 This statute became part of the law of our State by L. 1915, c. 173, §§ 1 and 2.
R.S. 9:15-2, the second statute found in the general legitimation chapter of Title 9, provides generally that children "born of a ceremonial marriage" are considered legitimate notwithstanding the subsequent declaration that such marriage is void.*fn3 This statute became law under L. 1924, c. 144, §§ 1 and 2.
Finally, N.J.S. 2A:34-20, found in the divorce and nullity statutes, provides that only a certain class of issue of void marriages are to be deemed illegitimate, that class being "where the ...