149 N.Y.S. 688 | N.Y. App. Div. | 1914
The facts are accurately stated by Mr. Surrogate Cohalan, as follows: “ Rudolf Tombo, Jr., died in May, 1914, and his will was probated in this court in June, 1914. Paragraph 6 thereof provides as follows: ‘Sixth, I hereby appoint said J. Boyce Smith, Jr., guardian of the person and estate of my daughter, Marion Adelaide Tombo, [hereby] directing that said guardian be allowed to qualify and serve as such without the giving of any security whatsoever.’ Said Rudolf Tombo, Jr., in December, 1901, married one Mary Adelaide Cooper, and in February, 1903, said Marion Adelaide Tombo was born to said Rudolf Tombo, Jr., and Mary Adelaide Tombo, then his wife. Thereafter Mary Adelaide Tombo was legally adjudged insane by an order of a justice of the Supreme Court. In June, 1911,
The surrogate was of the opinion that upon this state of facts the father was not entitled to appoint by will a guardian for his infant child. He was led to this conclusion by a consideration of section 81 of the Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19), and of sections 1145 and 1149 of the Code of Civil Procedure. The difference in the language of the two last-mentioned sections is interesting. Both sections deal with the consequences following upon the annulment of a marriage for reasons existing at the time the marriage was attempted to be contracted, and which rendered the attempted marriage void ab initio.
Section 1145 has to do with a case in which one of the contracting parties had a former husband or wife living at the time of the attempted marriage. As to such a marriage, it is provided that where one party was competent to contract a marriage, and entered upon the attempted marriage contract innocently, the issue “ are deemed for all purposes the legitimate children of the parent who at the time of the marriage was competent to contract, and are entitled to succeed as such in the same manner as other legitimate children to the real
Section 1749 deals with the case of the issue of a marriage which has been judicially declared void ab initio by reason of the mental incapacity of one of the contracting parties. It further provides as follows: “A child of a marriage which is annulled on the ground of the idiocy or lunacy of one of its parents is deemed for all purposes the legitimate child of the parent who is of sound mind. A child of a marriage which is annulled on the ground that one or both of the parties had not attained the age of legal consent, is deemed for all purposes the legitimate child of both parents.”
The surrogate was of the opinion that because the Legislature had inserted in section 1745 the words “he or she [the innocent party] is entitled to appoint a guardian of their persons by will,” and had omitted those words in section 1749, it had intended to withhold the power to appoint a guardian by will from the sane parent, where the marriage had been declared void for the insanity of the other, leaving the child of such a marriage in the peculiar and unfortunate position that no one could legally and competently appoint a guardian, for the mother, being insane, would be incapable of making a valid appointment, even if otherwise qualified.
We do not consider, however, that the difference in phraseology between sections 1745 and 1749 of the Oode is to be considered as an indication that it was the deliberate intention of the Legislature that, in a case like the present, the only parent of whom the child is to be deemed legitimate should be held to be incapable of appointing a testamentary guardian. Both sections are included in article 1 of title 1 of chapter 15 of the Oode, said article dealing, as its title indicates, with an “Action to annul a void or voidable marriage ” Section 1745 is the first one dealing with the status of the child of such a marriage. It relates specifically to the case of a marriage declared void by reason of the fact that one of the contracting parties had a former husband or wife living at the time of the marriage. As to the issue of such a marriage, it is provided, that
It follows that the order appealed from must be reversed and the matter referred back to the Surrogate’s Court.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order reversed and matter referred back to Surrogate’s Court.