Capraro v. Propati

• Decision Date: 31 July 1939
• Citation: 126 N.J.Eq. 67,8 A.2d 52
• Parties: CAPRARO v. PROPATI et al.
• Court: New Jersey Court of Chancery

8 A.2d 52

126 N.J.Eq. 67

CAPRARO

v. PROPATI et al.

Court of Chancery of New Jersey.

July 31, 1939.

Syllabus by the Court.

1. A bigamous marriage being void ab initio, lacks binding features for any purpose; and it, therefore, requires no decree of nullity or dissolution in any event.

2. A statute providing that a child born before wedlock shall be made legitimate by the subsequent marriage of its parents presupposes a valid marriage, and it does not apply to a child whose father had not, at the time of the marriage, obtained a valid divorce from his former wife.

3. 9:15-2 of Revised Statutes of 1937, N.J.S.A. 9:15-2, relates to parties to a marriage who, under a color of right, entered into such a contract, but subsequently, because of some impediment, was annulled and declared void by judicial decree. The statutory provision was never intended to apply to bigamous marriages where both parties were conscious of a matrimonial impediment.

4. It has been held however that a statute providing that the marriages of persons unable to contract or unwilling to contract are void and that the issue of such marriages, before they are annulled and declared void by a competent court, are legitimate does not include a bigamous marriage or the issue thereof for the reason that a mere marriage ceremony between a man and a woman where one of them has a living wife or husband, is not a marriage at all, but is a mere empty ceremony, and effects nothing and creates no status between the parties.

5. The personal representative of a decedent in whose name an action for wrongful death is brought, is a trustee for the beneficiary and it is his duty to distribute the damages recovered or received in accordance with the provisions of the statute for a breach of which duty the representatives are liable to the beneficiaries affected. It, therefore, follows that where the first in right under the statute is living, no misconduct of such person will constitute a disqualification to maintain the action unless imposed by the legislature which gives the right.

Suit by Rosa Lanza Capraro against Isabella Propati, also known as Isabella Capraro, and others, to obtain a sum of money remaining in the hands of the named defendant as administratrix of the estate of Joseph Capraro, deceased, and to obtain possession of realty of which Joseph Capraro, deceased, died seized, on ground that the complainant was the lawful widow of Joseph Capraro, deceased.

Decree advised for complainant.

Samuel S. Stern, of Jersey City, for complainant.

Collins & Corbin, of Jersey City, for defendants.

EGAN, Vice Chancellor.

On April 26, 1927, Joseph Capraro, late of Middlesex County, was killed in an accident with the Lehigh Valley Railroad Company. On May 5, 1927, the defendant, Isabella Capraro, claiming to be his wife, through a ceremonial marriage with him, in the City of New York, on November 21, 1907, obtained letters of administration upon his estate from the Middlesex County Surrogate. As a consequence of his death, she effected a settlement of damages in the sum of $5,000 with the railroad company. Joseph and Isabella, as a result of their alleged marriage, had two children, the defendants, John and Mary.

The complainant, Rosa Lanza Capraro, a resident of Italy, through Riccardo Riccardi, her attorney in fact, claims to be the true and lawful widow of Joseph. She instituted proceedings in the Middlesex County Orphans' Court to compel the defendant, Isabella, to account for the moneys received as aforesaid.

On December 20, 1932, the Orphans' Court of Middlesex County, signed a decree, whereby it was ordered, adjudged and decreed that the sum of $4,244.16 remain in the hands of Isabella Capraro as administratrix of the estate of Joseph Capraro, deceased. On the same day, the said court directed distribution of the funds. From this order directing a distribution, an appeal to the Prerogative Court was taken. On August 27, 1934, that court reversed the decree of December 20, 1932, of the Orphans' Court. It held that the Orphans' Court lacked jurisdiction to order distribution of funds arising under the Death Act, N.J.S.A. 2:47-1 et seq. See In re Capraro's Estate, 116 N.J.Eq. 259, 172 A. 907.

That decree was appealed from; but the Court of Errors and Appeals, on October 9, 1935, affirmed the decree of the Prerogative Court. 119 N.J.Eq. 82, 180 A. 830.

On April 18, 1935, the complainant instituted an action of ejectment in the Middlesex County Circuit Court against all the defendants. On October 19, 1938, a judgment for ejectment in favor of the complainant was directed by the Judge of the Middlesex County Circuit Court against these defendants; but on November 18, 1938, it was set aside and a new trial granted.

The complaint herein was filed on December 13, 1938. It alleges two causes of action. In the first cause, the complainant contends that, as the lawful widow of Joseph Capraro, she is entitled to the said sum of $4,244.16 remaining in the hands of the defendant, Isabella Capraro. In her second cause of action, she contends that she is entitled to possession of the real estate of which Joseph died seized.

The proofs disclose that the complainant and the decedent were married in the town of Terranova, Italy, on February 6, 1902. They both were born in that town, and resided there at the time of their marriage. A certificate of their marriage was offered and received in evidence (Exhibit C-5). Two witnesses, Riccardo and Frank Riccardi, testified they were present at the civil and religious marriage ceremonies between Rosa and Guiseppe, the said decedent. The first took place in the municipal building in Terranova; while the latter was performed in the local church in the same town. They said a marriage celebration followed at the home of the complainant, which they attended; and that among those present was the defendant, Isabella Capraro, who was then known as Isabella Propati. Frank Riccardi stated he then and there danced with Isabella.

Guiseppe was also known as Joseph. He and his wife, Rosa, after their marriage, went to live with his parents on a farm on the outskirts of the town of Terranova, where they both resided together for about one year. Then Guiseppe left Terranova and departed for the City of New York. His wife remained at his parents' farm.

Isabella admits that she was born in the town of Terranova, Italy, and lived there until she came to America in 1907. She denied that she knew the complainant in Italy, and that she attended the said marriage celebration, and there danced with Riccardi. When she came to America, Isabella took up her residence in New York City in the same house on 115th Street where Guiseppe was then living.

The complainant's witness, Frank Riccardi, left Terranova shortly after Isabella's departure from Italy, and came to America. He then took up his residence in New York City, in the same house on 115th Street where Guiseppe and Isabella were then living. Frank said that Guiseppe, also known as Joseph Capraro, was the same man whose marriage to the complainant he witnessed; and that the defendant, Isabella, is the same person with whom he danced at the marriage celebration in Terranova, Italy, in 1902. He further said that Guiseppe Capraro and the defendant, Isabella, in April, 1927, resided in South Plainfield, New Jersey. The evidence discloses that they resided together in that place since 1919. Riccardo Riccardi left the town of Terranova in the year 1911, came to the City of New York, and went to live at the aforesaid house on 115th street. He said that Guiseppe Capraro was then living in the same house; that he knew Guiseppe to be the same man who married Rosa Lanza in Terranova, Italy. He testified that after he arrived in New York City, Guiseppe asked him if Rosa were still alive and living with his parents in Terranova.

On behalf of the defendant, a certificate of her marriage to Guiseppe Capraro was offered and received in evidence (Exhibit D-2). It discloses that the decedent, Joseph Capraro, said, in answer to a question if he were "single, widowed, or divorced", that he was "single".

Interrogatories were propounded to the complainant in Italy, which were offered in evidence. Among them the following questions and answers appear:

"Q. 6. Have you ever been divorced from Guiseppe Capraro? A. 6. No.

"Q. 7. Do you know of any suit commenced by your husband, Guiseppe Capraro, for divorce? A. 7. No."

I am satisfied that the complainant, Rosa Lanza Capraro, and the decedent, Guiseppe, known also as Joseph Capraro, were legally competent to, and did, marry each other on February 6, 1902. It is my belief that the alleged marriage between the defendant, Isabella Capraro, and the said Joseph Capraro, deceased, on November 21, 1907, was bigamous, illegal and void ab initio. Friesner v. Symonds, 46 N.J.Eq. 521, 20 A. 257.

The defendants contend that the complainant's cause of action against Isabella Capraro is barred by the statute of limitations; and they further urge that she is guilty of laches. The defendants, refer to 2:24-1 of the Revised Statutes of 1937, N.J.S.A. 2:24-1, which enumerates certain causes of action which must be instituted within six years. That section, I find, is no bar to a cause of action instituted by a person who is entitled to a distributive share of funds recovered under the Death Act. While it enumerates several kinds of actions for which suit must be instituted within the statutory time, it does not mention among them an action for a distributive share of funds recovered under the provisions of the Death Act. Hedges v. Norris, 32 N.J.Eq. 192, 194.

The Death Act, Chapter 47, Revised Statutes of 1937, 2:47-4, N.J.S.A. 2:47-4, mentions those who are entitled to money that may be recovered and it provides for the manner of its distribution. It nowhere provides within what time after the money is received that the general administrator must make distribution;...