2 N.J. Misc. 422 | N.J. Super. Ct. App. Div. | 1924
The surrogate of Middlesex county granted letters of administration upon the estate of the abovernamed decedent to Elvira Brugnoli (the- respondent) as his widow. Erorn this order of the surrogate the present appellants, as the next of kin of decedent, appealed to the- orphans court,' and, upon affirmance by that court, brought the present appeal.
The issue was as to whether Elvira Brugnoli was the widow of decedent, and this involved two' questions — -(1) was she ever married to Brugnoli, and (2), if so-, was her prior husband living at the time of such marriage.
The burden is, of course, upon the appellants, and after a cn.reful consideration of the record before the orphans court, and the additional evidence submitted in this court, I find myself unable to say that error has been proven, although, unquestionably, the evidence gives rise to grave do-ubts and suspicions. The ceremonial marriage was testified to bv another witness, Orscna Lucia, (as well as the widow), and her credibility has not been impeached, and cannot, therefoi’e, be disregarded. And notwithstanding the prior marriage, the presumption, under the circumstances, is in favor
It may also- be said that there is at least grave doubt as to- the validity of the appeal to. the orphans, court, which mis not taken until some two months or more after the surrogate’s order appealed from. The time for such appeal is limited by the statute to twenty days, and I do not see that the stipulation of the parties, that the appeal should be deemed to have been taken within time, could legally avail to validate it.
I think the costs should he paid, out of the estate. There was good ground for the appeal, and the difficulty is obviously the result of decedent’s-own conduct.
