138 Misc. 136 | N.Y. Sur. Ct. | 1930
In this estate an application was made by the contestant in the probate proceeding for the appointment of a temporary administrator. The answer filed by the respondent disputed the status claimed by the contestant on this application, viz., that of testator’s widow. Upon the hearings held to determine the preliminary issue thus raised, the following evidence was adduced: That decedent was divorced from Ruth 0. Briggs in a proceeding brought by her in the Supreme Court of Westchester county; that the decree of divorce entered in that proceeding became final on June 4, 1929; that for several years theretofore decedent and contestant lived together and continued to so five until August 30, 1929, when they entered into a contract of common-law marriage in the State of New Jersey. The real estate operator who leased the farm at Bound Brook, N. J., to the decedent testified that on or about August 15, 1929, decedent and contestant called at his office, and the former executed the lease in the presence of the latter stating that “ they were to be married and that was why they were taking the farm; ” that he (the witness, Riley) visited the farm on a succeeding Sunday, about Labor Day, and
As to the effecting of the common-law marriage at Bound Brook, N. J., there were produced three witnesses, viz., Virginia Hammond, the maid who worked for the couple both before and after the taking over of the farm, Wilhelmina Schultz and her husband, Everett Schultz, who were the caretakers of the farm.
Virginia Hammond’s testimony was as follows:
“ Direct examination by Mr. Neuberger: Q. Where do you reside? A. 246 West 150th Street. Q. Do you five with anybody, relatives? A. My sister. Q. Did you know Mr. Clare A. Briggs in his lifetime? A. Yes, sir. Q. You also know the lady known as Marie C. Briggs, who is in court? A. Yes, sir. Q. You have been employed by her for some time and by him, too? A. Five years,
Wilhelmina Schultz, the housekeeper at the farm in Bound Brook, testified that the contestant arrived at the farm on the Friday before Labor Day of 1929, with the maid Virginia Hammond; that decedent arrived about an hour later and went up to the room which he occupied with the contestant; that about one hour later they both came down to the kitchen where the witness and her husband were at the time, and decedent said to them, “ Meet my wife, Mrs. Briggs; ” and that they stayed at the farm together until September ninth. This testimony was corroborated by that of the husband, Everett Schultz.
A number of other witnesses were called, who testified as to the
The respondents contend that little weight should be given this latter testimony because the behavior described by these witnesses was characteristic of decedent and contestant prior to August, 1929, according to the admission of some witnesses. In view of the uncontradicted testimony of the contestant’s principal witnesses, however, and the circumstances under which the decedent apparently found it necessary to go through the ceremony they described, the testimony in question has a bearing upon their actions, not only before but also after the common-law marriage. Decedent’s peculiar position distinguishes this case from those wherein the presumption was indulged that illicit relations continue, and wherein it was held that such presumption can be destroyed only by clear and convincing proof of a subsequent marriage. The described fear of decedent that the publicity which would attend a public marriage to contestant might injure his standing in his profession, in view of his recent divorce, is readily understood. The case then comes within the rule stated in Boyd v. Boyd (252 N. Y. 422) wherein the court said (at p. 428): “ The validity of any alleged common-law marriage is always open to suspicion. Especially is doubt justified when one of the parties is dead. Clear, consistent [and convincing evidence is required to establish the fact. This natural suspicion must, however, be dispelled when testimony, if reasonably believed, proves the existence of circumstances inconsistent with the absence of the alleged marriage.” (Italics are writer’s.) I find no reason to disbelieve the proof offered in this case of such circumstances.
In addition to the oral evidence there were introduced hospital records and telegrams sent to contestant by decedent. In the record from Johns Hopkins Hospital, made September 11, 1929, decedent’s address was given as No. 1 West Sixty-seventh street, New York city. Under “ name of relative or friend ” was entered “ Mrs. C. A. Briggs,” and under “ address of relative or friend,” the word “ same.” The telegrams were addressed to Mrs. C. A. Briggs and expressed the hope to be home soon, and were written in most affectionate language.
Although all of the foregoing evidence clearly and convincingly established the claim of contestant to the status of common-law wife, and completely rebutted any presumption of continued meretricious relations, a most important bit of testimony in support of the claim came from a witness called by the respondents. On
The respondents offered very meagre proof in opposition to the proofs of contestant. They called only three other witnesses — Reuben A. Lewis, decedent’s son-in-law, who testified that he saw the decedent on August 30, 3929, and again early in November, and on these occasions decedent told him nothing of the marriage; Harry P. Stayton, decedent’s syndicate manager, who testified that he was told nothing of the marriage, although the decedent referred to contestant as “ Mrs. Briggs ” several times in his presence; and Peggy White, decedent’s secretary, who testified that decedent did not tell her of the marriage. This testimony was weak indeed, in the face of contestant’s uncontradicted evidence showing that there was a common-law marriage. In Matter of Biersack (96 Misc. 161; affd., 179 App. Div. 916) the court quotes with approval the following rule: “ When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a presumption of its legality, not only casting the burden of proof on the party objecting, but requiring him throughout and in every particular plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void ” (p. 178).
My determinations, therefore, are as follows: (1) That any presumption of continued meretricious relations was entirely and completely rebutted by thé uncontradicted testimony as to the preparation for and consummation of the common-law marriage; (2) that the respondents have failed utterly to sustain the burden
No question has been raised as to the recognition by the State of New Jersey of a common-law marriage and counsel for contestant has cited New Jersey authorities to the effect that such marriages are recognized and upheld by the courts of that State. (State v. Thompson, 76 N. J. Law, 197; Atlantic City Railroad Co. v. Goodwin, 62 id. 394; Chamberlain v. Chamberlain, 68 N. J. Eq. 736; Schaffer v. Kreskovnikow, 89 id. 549; Bey v. Bey, 83 id. 239; Jackson v. Jackson, 94 id. 233.)
It is contended by the respondents, however, that contestant was incapable of contracting the marriage because of the following facts: Contestant was married to one Harry Chatman in New York some time prior to 1922. On April third of that year she secured a decree of divorce from him, based on her complaint that she was unable to Uve with him by reason of his habitual drunkenness and Ms cruelty towards her. Said decree was made by the Superior Court of Allen county, State of Indiana. The papers in that proceeding show that Harry Chatman was then residing in New York, and was served by pubücation. It is conceded that he did not appear in the action. The respondents claim that these circumstances prevent the courts of New York from recogmzing the divorce. It is true that the Supreme Court of the United States had held that under such circumstances no State is constrained to give full faith and credit to a decree rendered by a sister State, although any State, in the exercise of comity, may give full faith and credit to such a decree (Haddock v. Haddock, 201 U. S. 562). It is also true that New York, in cases where the parties had their matrimomal domicile here, has adopted a public pohey whereby it refuses comity and dechnes to recogmze the validity of such decrees (Olmstead v. Olmstead, 190 N. Y. 458; affd., 216 U. S. 386; Winston v. Winston, 165 N. Y. 553; affd., 189 U. S. 506; People v. Baker, 76 N. Y. 79). But a reading of these cases shows that such'policy was adopted for the benefit of New York citizens who refused to be bound by the foreign decrees. As stated in People v. Baker (supra, at p. 84): “ But that judgment cannot push its effect over the borders of another State, to the subversion of its laws and the defeat of its policy; nor seek across its bounds
On this trial the examination and cross-examination of the contestant brought forth the following facts: That when she left Harry Chatman she went to her former home with her parents at Fort Wayne, Ind.; that after she had begun the divorce action, he called on the long distance phone and asked her to discontinue it; and that several months after the decree was entered, viz., August, 1922, he married another woman who subsequently divorced him in Kings county, N. Y. A copy of the judgment roll in this latter proceeding was marked in evidence herein. It is thus established that the Indiana decree was accepted as valid by both parties to the proceeding in that State. The second marriage of Chatman has been confirmed by the Supreme Court of this State. This, then, is riot a case in which to apply our rule of public policy, which was adopted for the protection of citizens of New York who refuse to be bound by a foreign decree (Kelsey v. Kelsey, 204 App. Div. 116). Of our authority to make exception to the rule there can be no question. As was said in Hubbard v. Hubbard (228 N. Y. 81, 85): “ Whether or not the operation of a foreign decree of divorce in a given case will contravene the policy or wrong or injure citizens of the state is exclusively for its courts to determine. They are the final judges of the occasion on which the exercise of comity will or will not make for justice or morality.”
However, respondents have missed the real and primary question involved, which is not what should be the attitude of the New York courts with respect to the eligibility of contestant to enter into a common-law marriage, but rather the question whether the respondents have sustained the burden of proof imposed upon them when they attack the common-law marriage entered into in New Jersey. We have held that the evidence clearly and convincingly establishes a common-law marriage of decedent and contestant in the State of New Jersey. The burden rests upon the respondents to prove that a valid common-law marriage could not have been entered into in that State by decedent and contestant. (See Hynes v. McDermott, 91 N. Y. 451, and the learned and exhaustive opinion of Surrogate Wingate in Matter of Smith, supra.) They have failed completely to sustain that burden.
Submit decree on notice dismissing the objection that contestant was not the wife of decedent and setting down the application for appointment of a temporary administrator for hearing at twelve-forty-five p. M. on Thursday, June 26, 1930.
