10 Mills Surr. 48 | N.Y. Sur. Ct. | 1913
This is an application under subdivision 4, section 2685, Code of Civil Procedure, to revoke letters of administration obtained by an alleged false suggestion. The administratrix received the letters of administration as widow of Howard Kutter, deceased. She alleged and now insists that she is such widow. This is denied by the mother of the deceased, who petitions to revoke the letters. The issues of
Had the marriage of administratrix to the deceased taken place in the state of New York the question here would be very different. Under the law of this state the remarriage of a person whose husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time is not void, but voidable (2 R. S. 139, § 6; Dom. Rel. Law, § 6, Laws of 1909, chap. 19, formerly Laws of 1896, chap. 272, § 3), and such a second marriage subsists until death or an adjudication avoiding it, and this is so even if it transpires that the disappearing spouse of the prior marriage reappear (Stokes v. Stokes, 198 N. Y. 301, 305), unless there is bad faith apparent in the new marriage. Gall v. Gall, 114 N. Y. 109; Jones v. Zoller, 29 Hun,
But the marriage of the administratrix to the intestate Butter did not take place in this state; it took place in New Jersey. Its validity is to be determined there by the law of the state of New Jersey. Van Voorhis v. Brintnall, 86 N. Y. 18. In this respect locus regit actum, and, if valid in New Jersey, the marriage is valid everywhere. Story Confl. Laws, §§ 85, 89, 103; Wheat, 141; Hynes v. McDermott, 91 N. Y. 451, 457. If not valid there, it is not valid here. Now, the common law is presumed to be in force in New Jersey, and the statutes of this state have, of course, no extraterritorial effect there. No proof has been made before me of any statute of New Jersey altering the common law, and the surrogate cannot take judicial notice of the statutes of New Jersey. The presumption is that the common law prevails in New Jersey, when no statute altering it is proved as a fact. Vanderpoel v.
At common law the marriage of the administratrix to Rutter was absolutely void, if she then had a husband living. The proofs show that she then had a husband living. This being so, there is no escape from the conclusion that the present administratrix of intestate is not and was not the widow of the intestate Rutter at the time she applied for letters of administration upon his estate. The suggestion by which the administratrix obtained such letters was, therefore, false when made. Kerr v. Kerr, 41 N. Y. 372. This being so, the letters in question must be revoked.
Decreed accordingly.