In Re May’s Estate

114 N.E.2d 4 (1953)

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Nature of the Case

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Facts

P, one of six children born of the Rhode Island marriage of H and Fannie May, petitioned for letters of administration of the estate of her mother Fannie May, who had died in 1945. H. who asserts the validity of his marriage to the decedent filed an objection to the issuance to petitioner of such letters of administration upon the ground that he is the surviving husband of the decedent and he had the paramount right to administer her estate. P contends that her father, H, is not the surviving spouse of her mother because, although their marriage was valid in Rhode Island, the marriage never had validity in New York. The facts showed that H and the decedent - both of whom were adherents of the Jewish faith - went to Providence, Rhode Island, where, on January 21, 1913, they entered into a ceremonial marriage performed by and at the home of a Jewish rabbi. The certificate issued upon that marriage gave the age of each party as twenty-six years and the residence of each as 'New York, N.Y.'. Two weeks after their marriage in Rhode Island they returned to Ulster County, New York, where they lived as man and wife for thirty-two years until the decedent's death in 1945. Six children were born who are parties to this proceeding. In Rhode Island on January 21, 1913, the date of the marriage here involved, there were effective statutes which prohibited the marriage of an uncle and a niece, excluding, however, those instances - of which the present case is one - where the marriage solemnized is between persons of the Jewish faith within the degrees of affinity and consanguinity allowed by their religion. The Surrogate ruled that although the marriage of H and the decedent in Rhode Island in 1913 was valid in that State, such marriage was not only void in New York as opposed to natural law but is contrary to the provisions of subdivision 3 of section 5 of the Domestic Relations Law. The Surrogate concluded that H did not qualify in this jurisdiction for letters of administration as the surviving spouse of the decedent. The Appellate Division reversed. It concluded that the 1913 marriage of H and the decedent in Rhode Island, being concededly valid in that State, is valid in New York where the degree of consanguinity of uncle and niece is not so close as to be repugnant to our concept of natural law and that the statute. P appealed.