112 N.Y.S. 353 | N.Y. Sur. Ct. | 1905
The decedent died in 1904. In the year 1888 his then wife obtained a decree of absolute divorce in this state. On March 30, 1904, a formal religious marriage ceremony took place in Florida between him and the contestant, Aimee Michel. A child of this marriage was born on December 24, 1904, and this child in the to be the sole heir
It is urged that the entire burden in the case is upon the contestant Michel; that, the relationship between the contestant Baroux -and the decedent having been apparently matrimonial, the presumption that a valid marriage between them existed is raised with all of its force; and that such presumption can only be overcome with the clearest and most positive proof. • It should be noted, however,- that two equally powerful presumptions may well be. predicated of the case of the other contestant, namely, that of decedent’s innocence of the commission of the crime of bigamy, and that of the legitimacy of the child which was the issue of the Florida marriage. I am of the opinion that where, on the one hand, a nonceremonial, unwitnessed marriage is relied upon, attempted to be established by repute and declarations of one of the parties thereto who is dead, and, on the other hand, a later formal ceremony with another person is established beyond doubt, from which issue-sprang, the court should not be hedged with presumptions, but should come to its conclusions by weighing the evidence and giving effect to its preponderance. The evidence of repute to establish the Newark marriage was mostly given by casual acquaintances of the decedent who saw him at a summer hotel between the years 1890 and 1896. It was shown by them that he introduced the contestant Baroux as his wife, and that he lived with her as his wife. One of these witnesses was visited by the decedent and the contestant Baroux in New York prior to the year 1897. Another met these two as late as the year 1901, while :walking on Eighth avenue, New York City. It was further shown that this contestant and the testator at various times between the years 1890 and 1896 lived together as man and wife at No. 72 West Thirty-Fifth street, New York, where they had rooms. It was also shown by another witness that he was introduced to the-contestant as decedent’s wife in the city of Paris in the year 1895 or 1896.
Aside from the testimony bearing upon the question of repute, the only-other evidence that tended to establish the marriage of decedent with the contestant Baroux was that furnished by the latter’s sister, who swore to declarations decedent made to her to the effect that he had placed a ring on the finger of Miss Baroux at Newark on December 24, 1889, and that these two had then taken themselves for man and -wife. As against this array of proofs, it was shown that the witnesses who thus testified on the question of repute were .not the intimate friends of the decedent; that, so far as concerned these intimate friends, the decedent had at no time introduced the contestant Baroux to them as his wife; and that as a matter of fact he had never even'brought .her to one of the many social functions participated in by these friends and their families, but had come to them alone.
Setting aside the declarations of the decedent testified to by these friends showing the relationship between him and Miss Baroux to have been meretricious (since there may be some doubt as to their
Our courts have often expressed their suspicion upon the validity of so-called common-law marriages. The evidence to establish such a marriage should be clear, consistent, and convincing. A careful analysis of the testimony in this case forces the conclusion that the weight of evidence bears against the contention made by the contestant Baroux. The evidence of her sister I feel compelled to reject. She naturally is biased and interested in the success of her sister’s contention, and her testimony is incompatible with that of witnesses whose credibility cannot be ignored or disregarded.
I find that the decedent’s marriage with Aimee Michel was a valid one, and that she is the widow of the decedent.