The dissenting opinion of Walker, J., is worth quoting from:
"Had any court having competent jurisdiction granted a divorce, then by abrogating the marriage contract she would have lost her rights to dower and heirship, because the contract was destroyed in all of its parts, and the parties absolved from its performance, and all rights under it destroyed and ended. But in this case there was no divorce, but it was decreed, in the teeth of our never doubted laws, to have been void."[1]
South Dakota, in a case already mentioned,[2] has clearly said it will not decree nullity of a California marriage, even though by the laws of the new domicile it would be invalid. Massachusetts has properly refused to recognize a nullity decree of a New York court, where the husband was domiciled, when the marriage took place in Massachusetts between parties at the time domiciled there.[3] While this decision does not decide on its facts where jurisdiction was to give a valid nullity decree, it opposes Bishop's statement that domicile is the foundation.
Finally, in Levy v. Downing[4] the Massachusetts court refused to annul a marriage entered into by Massachusetts parties in New Hampshire. No Massachusetts statute declared the marriage void, though a New Hampshire statute said it was voidable. The court said that the marriage would stand until avoided in New Hampshire. The case comes to a different result from that reached in the New York cases cited,[5] but is not necessarily opposed on principle. Here was no declared policy of Massachusetts which would refuse to create a marriage status for its citizens upon a marriage good until the state where it took place declared it avoided. In New York there was, or the court thought there was. The Massachu- setts result is desirable, but since both the lex loci contractus and the lex domicilii are concerned in creation of the marriage state of these people, either could, by annulment, avoid the marriage. A recent Wisconsin case can hardly be sustained on this theory set forth above. The parties, who resided in Wisconsin, were married in Minnesota. One of them was an epileptic, and the
marriage, by the Minnesota statute, was voidable, but vaHd until
