131 Misc. 266 | N.Y. Sur. Ct. | 1928
This is a proceeding for the revocation of letters of administration upon the ground that such letters were issued by reason of a false suggestion of a material fact in the petition for such letters, namely, that the petitioner was the widow of the decedent. The petitioners herein are the brothers of the decedent. The petitioners allege that the administratrix herein is not the widow of the decedent for the reason that her first husband is still living and that her marriage to him is in full force and effect.
The evidence shows that the administratrix herein, Mina J. Sanders, and one James Blanchard were married at Au Sable Forks, N. Y., on or about April 7, 1880. They lived together as husband and wife for about three years and had one child, Fred Blanchard, who is still living. About 1883 Blanchard deserted his wife and child and went to the State of Vermont. From the time he left, he never in any way communicated with his wife or child or contributed to their support. About 1890, seven years' after Blanchard had deserted her, Mrs. Sanders received a newspaper from Rutland, Vt., containing an account of the death of one James Blanchard, formerly of Au Sable Forks, N. Y. It appears that this newspaper was sent to Mrs. Sanders by her aunt who was then living in the vicinity of Rutland. Mrs. Sanders discussed this account of the death of Blanchard with his father and mother. Both of them on several occasions advised her that they believed that Blanchard was dead. Mrs. Sanders also discussed the matter with several people in the locality of Au Sable Forks and with members of her own family. They all expressed a belief that Blanchard was dead. She also consulted a lawyer at Au Sable Forks in regard to the matter, and inquired whether under the circumstances she had a right to remarry without getting
To pass upon the matter in question will necessitate a determination by this court of whether or not the marriage of Mina J. Sanders to George A. Sanders is void or voidable. If void, then she was not entitled to be appointed administratrix of the decedent’s estate and her statement in her petition for letters of administration, that she was the decedent’s widow, constitutes a false suggestion of a material fact sufficient to authorize this court to revoke such letters, pursuant to section 99, subdivision 4, Surrogate’s Court Act. If her marriage to George Sanders was not void but voidable, then such marriage is valid for all purposes, until annulled by a court of competent jurisdiction. (Dom. Rel. Law, § 7; Civ. Prac. Act, § 1134; Stokes v. Stokes, 198 N. Y. 301, 305; Gall v. Gall, 114 id. 109, 120; Camp v. Penn. R. R. Co., 201 App. Div. 78, 86; Matter of Kutter, 79 Misc. 74, 75; Matter of Del Genovese, 56 id. 418, 420.)
Counsel for the administratrix urges that while this court may have the power in this proceeding to declare such later marriage, voidable, it does not have the power to declare such marriage void, as to do so would in effect constitute an annulment of such marriage, and that this can be done only in an action for that purpose, pursuant to section 1134 of the Civil Practice Act. Whether, if this court should declare this marriage void, the matter would be held to be res adjudicata in a proceeding brought
Was the marriage of Mina J. Sanders with George A. Sanders void or voidable? Since March 25, 1922, such a marriage would be absolutely void unless Mrs. Sanders’ prior marriage with Mr. Blanchard had been dissolved pursuant to section 7-a of the Domestic Relations Law. (Dom. Rel. Law, § 6, subd. 3, as amd. by Laws of 1922, chap. 279, in effect March 25, 1922.) It has been held, however, that this amendment is not retroactive, and that marriages contracted prior to its enactment, where one of the parties had a husband or wife living, are controlled by said section 6, subdivision 3, as it then existed. (Atkinson v. Atkinson, 207 App. Div. 660.) At the time of the marriage of Mrs. Sanders and Mr. Sanders, section 6, subdivision 3, of the Domestic Relations Law read as follows:
“ § 6. Void marriages. A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless * * *
“ 3. Such formei 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.”
Also, at the time of the marriage of Mr. and Mrs. Sanders, section 7, subdivision 5, of the Domestic Relations Law read as follows:
“ § 7. Voidable marriages. A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto * * *
“ 5. Has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time.”
Accordingly, it would seem clear that in any event the marriage of Mr. and Mrs. Sanders was voidable prior to Mr. Sanders’ death, and that an action to declare its nullity could have been maintained either by Mr. or Mrs. Sanders or by Mr. Blanchard.
Gall v. Gall (supra, 120, 121): “ He decides the question as to his right to remarry for himself, without application to any court or public authority. The whole responsibility rests upon him. He cannot shut his eyes and ears and justify a second marriage because for five years he did not hear of his wife. Did he try to hear of her? Did he honestly believe she, was dead?: Did he
Circus v. Independent Order Ahawas (55 App. Div. 534, 536): “ The person desiring to avail herself of this statute is required to act in good faith and use all such means to obtain information with respect to the absent spouse as reasonable persons would do under the circumstances. (Gall v. Gall, 114 N. Y. 109.) She cannot shut her eyes and ears and make no effort to ascertain the facts, and then, because she knows nothing, marry at the end of the five years relying merely upon the absence of the other person. So the question is whether in this case the plaintiff did what a reasonable person would do under the circumstances to ascertain the whereabouts or the existence of Brenner after he had left her. In such cases one is called upon only to make use of the opportunities which she has to get information, and if she fairly makes use of those opportunities and obtains no information, she is entitled to act upon the presumption which the statute creates.”
I am satisfied from the evidence herein that in view of the test to be applied as to the thoroughness of the investigation to be made in such a case, as set forth in the above-mentioned cases, Mrs. Sanders did all that was required of her by the statute in order that it may be said that at the time she married Mr. Sanders she had no knowledge that Mr. Blanchard was then living. I believe that she did what a reasonable person would do under like circumstances to ascertain the whereabouts or the existence of Mr. Blanchard, prior to her marriage with Mr. Sanders. The evidence strongly indicates that her inquiry was conducted in good faith and with an honest effort to find out the truth. She was an ordinary person in a small hamlet and she did all that a person of her financial ability and social standing would do to secure the information desired. Surely the father, mother and brother of Blanchard would be the first ones to whom any one would address an inquiry as to the existence or whereabouts of James Blanchard. They all advised Mrs. Sanders that they believed James Blanchard was dead. Mrs. Sanders then inquired of various persons in her locality who might reasonably be expected to have some information regarding the matter, and they advised her that they believed James Blanchard was dead. She also inquired in regard to her right to remarry from an elderly lawyer
It follows that the petition herein should be dismissed and the administratrix be allowed dower in the decedent’s real estate and the statutory exemptions for the benefit of a widow. (Matter of McKinley, 66 Misc. 126.) Costs in this proceeding to be allowed the administratrix pursuant to section 278 of the Surrogate’s Court Act, and to be payable pro rata from the interests of the petitioners herein, in decedent’s estate. Costs to be taxed and decree to be entered on two days’ notice to either party.