108 Misc. 230 | N.Y. Sup. Ct. | 1919
In this action in partition, the only question is which of two women is the lawful wife of the defendant Jacob Avril. He married both of them under the following circumstances: In 1892 he married Josephine K. Avril. Some ten years later she was adjudged an incompetent. Some ten or eleven years thereafter an action was brought in the name of Josephine K. Avril, by her duly appointed guardian ad litem, against Jacob Avril to obtain a divorce. While this action was pending, the guardian ad litem for Josephine was appointed committee of her person and property. Later a final judgment of divorce was entered and, pursuant to its provisions, Jacob Avril paid $3,000 to the committee of Josephine in lieu of all future alimony. Some months thereafter Jacob Avril married Wilma Avril, and later still acquired the properties involved in this action.
But it. is urged that the invalidity of the judgment
The only further contention is that all the equities are with Wilma Avril and that Josephine K. Avril should be estopped from asserting the invalidity of the decree. This contention seems to rest principally upon the fact that Jacob Avril paid $3,000 to the committee of Josephine in lieu of all alimony. But it does not appear how that in any way affected Wilma. Furthermore, Josephine has been judicially declared to be incompetent, and that determination has not been revoked. It is, therefore, conclusive proof that her incompetency continues. Wadsworth v. Sharpsteen, 8 N. Y. 388; Carter v. Beckwith, 128 id. 312. Moreover, even if the adjudication was not conclusive, there was not sufficient proof given on the trial to warrant a finding that she is now competent. And the record shows that though she has been out of an institution for some years and made an application to vacate the order adjudging her incompetent that was denied. There is no basis whatever upon which it can be held that Josephine is estopped. See Ackerman v. True, 175 N. Y. 353. It is true that, under certain conditions, contracts made by incompetents may not be avoided. McCarthy v. Bowling Green Storage & Van Co., 182 App. Div. 18, 22, 23. But such decisions have no bearing upon the question here presented.
There must be judgment decreeing that Josephine is the lawful wife of Jacob'Avril, and for partition accordingly. .
Judgment accordingly.