¶1It seems to be conceded by the counsel for the complainant, Ruth Smith, that if her marriage to Smith was absolutely void, she is not entitled to dower in his estate. Such is undoubtedly the law; and it is equally well settled, that a *33second marriage,, as in this case, while the first husband was living, is absolutely void, unless the legislation of this State has rendered such second marriage voidable only.
¶2It is said that the statute which authorizes proceedings to obtain a divorce, “ where either of the parties had a former husband or wife living at the time of solemnizing the second marriage” (Swan’s Stat. 325, sec. 1), does, constructively, render such second marriage voidable only. The fact of a prior marriage may be one of doubt; and hence this provision permits parties to have the subject judicially investigated and determined. Another object of this provision was, probably, to give alimony to the second wife of a man who had a .former wife living. Besides, to render such second marriage valid, or voidable only, until decree of divorce, would require distinct and positive legislation.
¶3No presumptive proof of a divorce between Dennis and his wife exists. Indeed, a divorce being a judicial proceeding of record, we do not see how such a presumption could arise without some proof. There is none.
¶4The petition must le dismissed.