Estate of Jenkins, Matter of

• Decision Date: 03 October 1986
• Citation: 506 N.Y.S.2d 1009,133 Misc.2d 420
• Parties: In the Matter of the ESTATE OF Leo JENKINS, Deceased. Surrogate's Court, Queens County
• Court: New York Surrogate Court

Page 1009

506 N.Y.S.2d 1009

133 Misc.2d 420

In the Matter of the ESTATE OF Leo JENKINS, Deceased.

Surrogate's Court, Queens County.

Oct. 3, 1986.

Frederic Z. Konigsberg, Great Neck, for petitioner.

Seymour Goldberg, Garden City, for John Morris Jenkins.

David Schlachter, Schlachter & Mauro, Commack, for John Morris Jenkins.

LOUIS D. LAURINO, Surrogate.

DRORA ERGON, who alleges she is the surviving spouse of the decedent, LEO JENKINS, has filed a petition asking this Court to extend her time to file a right of election on the grounds that at the time of MR. JENKIN'S death in New York City she was in Israel and was not informed of the fact until some time later. MR. JENKINS was domiciled in Long Island City.

The executor moves for summary judgment dismissing the petition on the grounds that MS. ERGON lacks the status of surviving spouse necessary to file a right of election.

MS. ERGON contends that she and the decedent entered into a common-law-marriage in Israel where such a marriage is recognized. In particular she relies on two Statutes found in the Succession Law of Israel, to wit:

Section 55 of the Israel Succession Law of 1965 reads:

"Where a man and woman though not being married to one another, have lived together as husband and wife in a common household, then, upon the death of one of them, neither being then married to another person, the deceased is deemed, subject to any contrary direction expressed or implied in the will of the deceased, to have bequeathed to the survivor what the survivor would have inherited on intestacy if they had been married to one another."

Section 57(c) of the same law reads:

"Where a man and woman, though not being married to one another, have lived together as husband and wife in a common household, then, upon the death of one of them, neither being then married to another person, the survivor is entitled to maintenance out of the estate as if they had been married to each other."

Both parties have offered expert opinions by members of the Israeli Bar as to the meaning and effect of the statutes as to the question of whether MS. ERGON and the decedent were married in the eyes of the Israeli Law.

As is not uncommon when experts give their opinions in any contested matter each of these experts reaches a different conclusion as to the effect of the laws. MS. ERGON'S holding that the Israeli Statute permits the parties to enter into a common law marriage in Israel. The executor's holding that the Statutes do not create a right to enter into a common law marriage in Israel. MS. ERGON contends that the differences of opinion expressed by the experts as to the meaning and effect of the Israeli Statutes raises a question of fact that requires a trial.

The Court does not agree. CPLR 4511 allows the Court to take Judicial notice, without request of the laws of a foreign nation and where requested by the party mandates the Court taking Judicial notice of the foreign law where the party requesting it furnishes the Court with sufficient information to comply with the request and gives notice to the other parties.

Here, MS. ERGON set forth the relevant Statutes in translation in her petition. The executor admits that the Statutes exist and does not question the accuracy of the translation. The meaning and effect to be given to a Statute is a question of law and not of fact. "State courts must routinely construe foreign law in the resolution of controversies properly before them" ... (Zschernig v. Miller, 389 U.S. 429, 442, 88 S.Ct. 664, 671, 19 L.Ed.2d 683).

In addition, while the two experts disagree in their conclusions they do agree on a sufficient number of points to be of aid to the Court in determining the matter and to lead the Court to "other references and repositories of information" on the subject which are worthy of belief and confidence (People v. Langlois, 122 Misc.2d 1018, 472 N.Y.S.2d 297).

The existence and contents of a foreign law become a triable issue of fact when their contents are not set forth in detail, where their existence is disputed or where the accuracy of the translation of the same is raised. (See Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382; Bercholz v. Guaranty Trust Co., 179 Misc. 778, 40 N.Y.S.2d 41; Rosman v. Trans World Airlines, 34 N.Y.2d 385, 358 N.Y.S.2d 97, 314 N.E.2d 848).

To determine whether the Israeli Statutes in question provide for common law marriage it is first necessary to define marriage as it is held to be in New York. Interestingly, the concept is so basic that there is no definition of the relationship set forth in Statute.

However, the courts have defined it as "the civil status of one man and one woman united in law for life under the obligation to discharge to each other and to the community those duties which the community by its laws imposes" (See 45 N.Y.Jur.2d Domestic Relations § 1; Campbell v. Crampton, 2 F. 417, "B" v. "B" 78 Misc.2d 112, 355 N.Y.S.2d 712).

Common law marriages were abolished in New York on April 29, 1933. However, common law marriages entered into in New York prior to that date were and are recognized. So too New York continues to recognize common law marriages entered into in a jurisdiction where they are valid. Whether a common law marriage has been entered into will be determined by the laws of the jurisdiction where the marriage was allegedly contracted (Matter of Watts, 31 N.Y.2d 491, 341 N.Y.S.2d 609, 294 N.E.2d 195).

Within the jurisdictions in the United States that recognize common law marriages is an absolute requirement that the parties must mutually agree or consent to take each other as husband and wife. The agreement must be a present agreement and not an agreement to take one in the future as husband or wife (See 52 Am.Jur.2d, Marriage S. 48).

The agreement must be to enter into the full marital relationship, permanent and exclusive of all others so that when consummated by cohabitation, nothing less than the death of one of the spouses or a Decree of Divorce pronounced by a court of competent jurisdiction can dissolve the relationship (id.).

While cohabitation and the reputation of being husband and wife and the holding out of one another as husband and wife are evidence that the parties did agree to live as husband and wife, they are not substitutes for such an agreement. (See Graham v. Graham, 211 App.Div. 580, 207 N.Y.S. 195).

In Matter of Pratt, 233 App.Div. 200, 251 N.Y.S. 424, app. dismissed, 258 N.Y. 577, 180 N.E. 340 the Court stated at page 203, 251 N.Y.S. 424:

"Cohabitation between the parties and a mutual acknowledgment on their part that they are man and wife, coupled with a general reputation that they sustain such relation to each other, do not, in and of themselves, constitute a marriage; all this is simply evidence, which, if strong enough and not successfully controverted, raises a presumption that the parties are husband and wife, and justifies the trier of the fact in finding that such is the fact ..."

The existence of a prior marriage that has not been dissolved by divorce or the death of one of the spouses is a bar to the other spouse entering into a common law marriage.

So too the entering into a valid common law marriage which is not dissolved by divorce or death of one of the spouses is a bar to one of the parties entering into a ceremonial marriage with another person. (See Graham v. Graham, supra; Moller v. Sommer, 86 Misc. 110, 149 N.Y.S. 103). In both situations the later marriage would be void as polygamous.

At this point it might be well to consider the points that both of the experts in Israel Law agree on.

One is that the two Statutes are not the only ones in the Israeli Code that define the rights of parties who are living together but have not been ceremonially married.

The executor's expert states the technical term for such a relationship is "known in public" as a marriage or "known in public" spouse.

MS. ERGON'S expert refers to their relationship as a "reputed marriage" or "reputed spouse", though he admits "known in public" is the literal translation of the words he sets forth as "reputed".

Both agree that in the Matter of...