In re the Estate of Simms

New York Surrogate's Court

In re the Estate of Simms

105 Misc. 118

DecidedNovember 15, 1918

StatusPublished

This text of 105 Misc. 118 (In re the Estate of Simms) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Simms, 105 Misc. 118 (N.Y. Super. Ct. 1918).

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Opinion

Fowler, S.

The application to revoke letters granted ex parte to Sarah Simms, the mother of the deceased Charles Simms, was made by the alleged wife of Charles Simms. The mother denied marriage of her son, and the issue came on for hearing. On the hearing before me a marriage was established by those actually present at the marriage ceremony, performed on the 17th of June, 1908, at No. 66 West One Hundred and Thirty-third street, this city, by one claiming to be a minister. This constituted a marriage de facto, in any event, which was sufficient prima facie to support this application. The burden of proof was on the mother to show the invalidity of the alleged marriage for any reason. Matter of Meehan, 150 App. Div. 681. It is always presumed that a marriage was duly solemnized. [119]*119Sichel v. Lambert, 15 C. B. (N. S.) 781. Conformation with the law is always presumed; never the contrary, except in one instance of the game laws, of no importance here. The maxim, “ Omnia praesumuntur promatrimonio,” or “ semper praesumitur pro matrimonio ” is a.very rigid one in our law, and ought to be so. People are not expected to carry around with them proofs of their marriage, and the presumptions in favor of their marriage are most liberally made in the interest of decency and morality. The mother has failed utterly to support the burden of proof resting on her, and the application to revoke her letters must, therefore be granted.

Application granted.

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Fowler, S.

The application to revoke letters granted ex parte to Sarah Simms, the mother of the deceased Charles Simms, was made by the alleged wife of Charles Simms. The mother denied marriage of her son, and the issue came on for hearing. On the hearing before me a marriage was established by those actually present at the marriage ceremony, performed on the 17th of June, 1908, at No. 66 West One Hundred and Thirty-third street, this city, by one claiming to be a minister. This constituted a marriage de facto, in any event, which was sufficient prima facie to support this application. The burden of proof was on the mother to show the invalidity of the alleged marriage for any reason. Matter of Meehan, 150 App. Div. 681. It is always presumed that a marriage was duly solemnized. [119]*119Sichel v. Lambert, 15 C. B. (N. S.) 781. Conformation with the law is always presumed; never the contrary, except in one instance of the game laws, of no importance here. The maxim, “ Omnia praesumuntur promatrimonio,” or “ semper praesumitur pro matrimonio ” is a.very rigid one in our law, and ought to be so. People are not expected to carry around with them proofs of their marriage, and the presumptions in favor of their marriage are most liberally made in the interest of decency and morality. The mother has failed utterly to support the burden of proof resting on her, and the application to revoke her letters must, therefore be granted.

Application granted.

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