4 Misc. 2d 725 | N.Y. Sur. Ct. | 1956
The petitioner’s right to letters of administration is dependent on whether she was the common-law wife of the decedent. Her petition is opposed by three sisters of the decedent. A hearing has been held and testimony taken on the issue involved.
To establish a common-law marriage, the validity of which is always open to suspicion, especially when one party is dead, clear, consistent and convincing evidence is required. (Boyd v. Boyd, 252 N. Y. 422; Matter of Wells, 276 App. Div. 822, affd. 301 N. Y. 796.) The burden of proof to establish such common-law marriage is on the one who claims its existence. (Fidanque v. Fidanque, 276 App. Div. 543.)
This natural suspicion against common-law marriages may be dispelled where the existence of such marriage is established by testimony which clearly establishes that although the parties entered into a meretricious relationship, they thereafter agreed to live together as husband and wife. The determination of the existence of a common-law marriage must be predicated upon testimony as to what occurred prior to April 29, 1933 when common-law marriages were declared invalid by the laws of this State. (L. 1933, ch. 606.) Documentary evidence and
The testimony in the instant case indicates that the petitioner and decedent may well have entered into a purported agreement to live together as husband and wife. However, there is no testimony whatsoever of such an agreement having been reached prior to April 29, 1933. The testimony, in fact, is to the contrary. When the petitioner was asked what she and the decedent said regarding marriage, she replied: “ We both had hot dispositions. I guess maybe we both liked to feel that we were free. If he wanted to go or I wanted to go, maybe we could, but we stayed together all those years.” A desire to feel free to leave each other at any time is inconsistent with the establishment of a marriage, common-law or ceremonial. It is unfortunate that the petitioner and the decedent did not comply with the Legislature’s dictate as to marriage formalities, or that the decedent left no will which would have provided for the petitioner. In this matter the court may not supersede the Legislature or disregard the failure of the decedent to express his testamentary intent in a valid will.
The petition for letters of administration is therefore denied.
Submit decree on notice.