In re the Estate of Vargo

282 A.D. 701, 122 N.Y.S.2d 4, 1953 N.Y. App. Div. LEXIS 4739

Opinion

Decedent was married to Anna Hluska, in Brooklyn, on January 16, 1910. Respondent, born July 13, 1912, is the only living issue of that marriage. Decedent did not live with his first wife since 1913. About that time he took up residence with appellant, to whom he was formally married on January 17, 1922, in Pennsylvania. There are four children of decedent’s second marriage. Decedent’s first wife died on January 22, 1934. There is no testimony that decedent lived with appellant after that date. Decedent died on September 2, 1952. Appellant, claiming to be decedent’s widow, petitioned for letters of administration. Respondent filed objections on the ground that appellant was not the widow and that she (respondent) was entitled to letters as the only issue of decedent’s first marriage. Temporary letters were issued to appellant on October 31, 1952. After hearing, the Surrogate entered a decree revoking the temporary letters issued on October 31, 1952, and appointing respondent as administratrix. The Surrogate held that decedent’s second marriage on January 17, 1922, was invalid under subdivision 3 of section 6 of the Domestic Relations Law as it existed at the time of that marriage (i.e., prior to its amendment by L. 1922, ch. 279) because decedent knew that his first wife was living and could have located her had he wished to do so. Decree, of the Surrogate’s Court, Suffolk County, unanimously affirmed, without costs. We do not adopt the reasoning of the Surrogate. The second marriage took place in Pennsylvania, and, therefore, the provisions of the New York Domestic Relations Law were not applicable. Although, in the absence of evidence to the contrary, there is a presumption of the validity of the second marriage, which was ceremonial, and of the legitimacy of the issue of that marriage, in our opinion, there is evidence in this record to sustain a finding that the first marriage had not been terminated prior to the time the second marriage was contracted. Present — Carswell, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ. [203 Mise. 642.]