Blumenthal v. Tannenholz

1. The domicil of a legitimate, unemancipated minor is, if his father be alive, the domicil of the latter. 2. Where neither of the parties to a marriage resides here, this court will not take jurisdiction of a suit to annul the contract on the ground that the contract was made here. 3. An infant, whose parents resided in Canada, filed a bill to annul her marriage, on the ground of her husband’s fraud and misrepresentation as to the effect of a Jewish ceremony performed in this state, which she at the time believed to be merely a betrothal. Her husband was domiciled elsewhere.—Held, that she was incapable of changing her own domicil, and that, consequently, the court had no jurisdiction. Note.—Unless expressly forbidden by statute, the rule of the common law, that fixes the age of marriage consent for males at fourteen, and for females at twelve, prevails in the United States, and such marriage, although without the parents’ consent, is valid. Bennett v. Smith, 81 Bari. 1¡39; Barton v. Hervey, 1 Gray 119; Governor v. Rector, 10 Humph. 57; Warwick v. Cooper, 5 Sneed 659; Hargroves v. Thompson, 81 Miss. 811; Shutt v. Carloss, 1 Ired. Eq. 888 ; Askew v. Dupree, 80 Ga. 178; Fitzpatrick v. Fitzpatrick, 6 Nev. 68. See Harrison v. Southampton, 4 DcG. M. & G. 187; Sherwood v. Ray, 1 Moo. P. G. C. 858; Rex v. Birmingham, 8 Barn. & Cress. 89; Barker v. Taylor, 1 C. & P. 101; Cotten v. Rutledge, 88 Ala. 110 ; Hiram v. Pierce, 45 Me. 867; Ferrie v. Public Adm’r, 4 Bradf. 88; Ely v. Gammell, 58 Ala. 584• As to the civil law rule, see Grigsby v. Louisiana Bk., 8 La. 491; Burr v. Wilson, 18 Tex. 867. Query, Whether there is any legal presumption that a wife is over fifteen years of age. Bruce v. Arrington, 88 Ark. 868. Whether a parent can recover damages against a person who, without force or fraud, marries his child, when between twelve and twenty-one years of age, see Goodwin v. Thompson, 8 Greene (la.) 889; Jones v. Terns, 4 Litt. 85; Hervey v. Moseley, 7 Gray 419; White v. Henry, 84 Me. 581. For the English rule, see Bevan v. McMahon, 8 Sw. & T. 58; Wells v. Cottam, 8 Sw. & T. 864, 598. But such marriage is void if any fraud or imposition be practiced on the infant. Harford v. Morris, 8 Hagg. 4%8; Lyndon v. Lyndon, 69 III. 43; Aymar v. Roff, 8 Johns. Ch. 49; Ferlat v. Gojon, Hopk. Ch. 478; Clark v. Field, IS Vi. 1¡60; Robertson v. Cole, 18 Tex. 356; Field's Case, 8 H. of L. Cas. lft. Although an infant is not bound by a promise to marry (Pool v. Pratt, 1 Chip. 858; Hunt v. Peake, 5 Cow. Iff5; Hamilton v. Lomax, 86 Barb. 615; Feibel v. Obersky, 13 Abb. Pr. (N. 8.) 408, note), yet the adult with whom such promise is made, is bound (Holt v. Ward, 8 Sir. 937; Simmons v. Simmons, 8 'Mich. 318; Willard v. Stone, 7 Cow. 88; Cannon v. Alsbury, 1 A. H. Marsh. 76; Warwick v. Cooper, 5 Sneed 659; Beelman v. Roush, 86 Pa. St. 509); and a female between eighteen and twenty-one years of age, may lawfully release a contract to marry (Develin v. Riggsbee, 4 Ind. Iftlf). See Coxhead v. Mullís, L. R. (3 G. P. L.) 489. A marriage between parties under the legal ages above stated, may be ratified by their living together after arriving at lawful age. People v. Slack, 15 Mich. 198; Coleman's Case, 6 City Hatt Rec. 8; Hoonce v. Wallace, 7 Lories Law 194; Shafer v. State, 80 Ohio 1; Beggs v. State, 55 Ala. 108; Cooley v. State, 55 Ala. 168; Walls v. State, 88 Ark. 565. By the marriage of a minor, the guardian is discharged (Porch v. Fries, 8 C. E. Gr. 804; Sallee v. Arnold, 38 Mo. 588; Wood v. Henderson, 8 How. (Miss.) 893; Metcalf v. Lowther, 56 Ala. 818; Shutt v. Ccerloss, 1 Ired. Eq. 888; Beazley v. Harris, 1 Bush 583; Ex parte Post, Jff Ind. 148) ; unless such minor marry another minor (State v. Loest, 4.6 Ind. 885; Nicholson v. Wilborn, 18 Qa. Ift7; see Hopkins v. Virgin, 11 Bush 677); but it seems that a' female ward in chancery is not, of course, discharged from the protection of the court, by marriage ( Whitaker's Case, 4 Johns. Ch. 878); nor are her funds, while in court, liable to attachment for her husband’s debts (Godbold v. Bass, 18 Rich. 808; see, also, Potter's Case, L. R. (7 Eq.) 484; White v. Herrick, L. R. (4 Ch.) 845). A legitimate infant takes the domicil of its father (Andrews v. Herriott, 4 Cow. 516, note); although such infant be posthumous, and its mother again married (Oxford v. Bethany, 19 Conn. 889); or not actually residing with such parent (Adams v. Oaks, 80 Johns. 888; Parsonsfield v. Kennebunkport, 4 Me. 1ft; Ryall v. Kennedy, 1ft N. Y. Sup. Ct. 847; Brown v. lynch, 8 Bradf. 814; Helffenstein v. Thomas, 5 Rawle 809 ; Rex v. Law-ford, 8 Barn. & Cress. 871). It is said that by marriage a minor may acquire the domicil of his wife (Phillim. on Bom. 50; see Bucksport v. Rockland, 56 Me. 88). A marriage contrary to the English act was held to be void, and that the wife could derive no settlement therefrom (Chinham v. Preston, 1 W.' Bl. 192; Bex v. Northfield, Doug. 634) > hut in Bex v. Birmingham, 8 Barn. & G-ess. 29, a marriage of a female pauper, brought about by the fraud of the parish officers, was held to confer a settlement in her husband’s parish; see, however, Barnes v. Wyethe, 28 Vt. pi; and in Johnson v. Huntington, 1 Day 212, a lunatic pauper was held to have gained, by her marriage, a settlement in the state where her husband resided, although the marriage was null. In Lalce v. South Caanan (Pa.), 18 Alb. L. J. 116, the settlement of a divorced female pauper was held to be that of her husband; although by the desertion of her husband a woman may gain her own domicil (Moffatt v. Moffatt, 5 Cal. 280; Johnson v. Johnson, 12 Bush 485). Under what circumstances, generally speaking, a woman may acquire a separate domicil, for the purpose of instituting proceedings in divorce, see Cooley’s Const. Dim. (4th ed.) 491; also, Hick v. Hick, 5 Bush 670; Craven v. Craven, 27 Wis. 4Í8; Jenness v. Jenness, 24 Ind. 365; Vence v. Vence, 15 How. Pr. 497, 576 ; Hope v. Hope, 27 E. L. & E. 2)9 ; Dutcher v. Dutcher, 89 Wis. 651. In England, an infant may not sue for a divorce in his or her own name, but must do so by a prochein ami (Barham v. Barham, 2 Hagg. 5; Du Terreaux v. Du Terreaux, 1 Sw. & Tr. 555; Beavan v. Beavan, 2 Sw. & Tr. 652 ; Morgan v. Thorne, 7 M. &W. 400); and this rule has been followed in this country in some instances (Wood v. Wood, 2 Paige 108, 454; E. B. v. E. C. B„ 28 Barb. 299, 8 Abb. Pr. 44; Henley v. Henley, 2 How. (Miss.) 751); although denied in others (Jones v. Jones, 18 Me. S08; Besare v. Besore, 49 Ga. 378). See Anderson v. Anderson, 11 Bush 327; Adams v. Hannon, 3 Mo. 222; Worthy v. Worthy, 36 Ga. 45; Garnett v. Garnett, 114 Mass. 379; Crump v. Morgan, 3 Ired. Eq. 91. An infant widow may not b« appointed administratrix of her husband’s estate (Collins v. Spears, Walk. (Miss.) 310; Wallis v. Wallis, 1 Wins. 78); and if she should be allowed so to administer, she would not be bound personally on a note given by her for her husband’s debt. Poole v. Hines, 52 Ga. 500. See, further, Cobb v. Brown, Speer’s Ch. 564! Carow v. Mowatt, 2 Edw. Ch. 57; Hindmarsh v. Southgate, 3 Buss. 324; Chappie v. Cooper, 13 M. & W. 252; Loop v. Loop, 1 Vt. 177.—Rep.

Bill for.decree annulling marriage. On final hearing on pleadings and proofs.