In re Moncrief's Will

• Decision Date: 17 April 1923
• Parties: In re MONCRIEF'S WILL. In re GILBERT.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 390

139 N.E. 550

In re MONCRIEF'S WILL.

In re GILBERT.

Court of Appeals of New York.

April 17, 1923.

Judicial settlement of the account of the proceedings of Alice L. Gilbert, deceased, as administratrix of the last will and testament of Jane Moncrief, deceased. From the order of the Appellate Division (203 App. Div. 893,196 N. Y. Supp. 940), affirming a decree of the surrogate in settling accounts, and from an order of the Surrogate's Court, entered on the remittitur, certain parties appeal. Reversed and remitted.

See, also, 118 Misc. Rep. 98,192 N. Y. Supp. 622.

Appeal from Supreme Court, Appellate Division, First department.

Godfrey Goldmark and Rufus T. Griggs, both of New York City, for appellant Runk.

Percy L. Housel, of Riverhead, for appellant Ostrander.

Harry W. Mack and John H. Taylor, both of New York City, for respondent.

ANDREWS, J.

If Agnes A. Ga Nun was legitimate, as she has been held to be by the courts below, her child is entitled to a distributive share in the estate of one Jane Moncrief. Agnes A. Ga Nun was born on February 5, 1882. On the next day her parents were married. On June 23, 1883, this marriage was annulled for duress and force on the complaint of the husband. The decree provided that the marriage ‘is wholly null and void from the date of this judgment.’ Chapter 531 of the Laws of 1895 provides that ‘all illegitimate children whose parents have heretofore intermarried * * * shall be considered legitimate for all purposes.’ Did the parents here intermarry within the meaning of this clause? We hold that they did not.

Marriage in this state is a civil contract depending upon the consent of the parties who enter into the relation. R. S. 1830, pt. 2, c. 8, tit. 1; Caujolle v. Ferrie, 23 N. Y. 90, 106. Any alleged contract may be void or voidable. A void contract is no contract whatever. At no time and under no circumstances has it any effect. It does not change the legal status of the parties. It is a nullity. It may be attacked directly or collaterally. A marriage contract may be void in this sense. A bigamous marriage is an illustration. Its invalidity may be asserted by any one if the question becomes material, and the parties to it may act as if it had never been. A voidable contract, on the other hand, is valid unless it be attacked by the party seeking to avoid it. Until disaffirmed it is binding. Any defect in it may be cured by the ratification of the innocent party. If induced by fraud or duress, it may still be enforced at the election of him who was deceived or compelled. There is this distinction, however, between a voidable contract of marriage and a voidable contract of another character. The latter may be ended by a mere act of disaffirmance. Because of the peculiar incidents of the marriage relation, the interests of the public, and the interests of children, simple disaffirmance of a marriage by the injured party is not enough. It must be followed by a decree of the court ratifying the act. Ostro v. Ostro, 169 App. Div. 790,155 N. Y. Supp. 681. Much the same distinction exists in case of the material breach of a contract. Ordinarily the injured party may rescind without more. Not so as to marriage. A decree of divorce is required.

Whether prior to the Revised Statutes a marriage induced by duress and force was void, or only voidable, our courts of equity had jurisdiction to declare it void. Perry v. Perry, 2 Paige 501;Wightman v. Wightman, 4 Johns. Ch. 343;Ferlat v. Gojon, 1 Hopk. Ch. 478, 14 Am. Dec. 554;Walter v. Walter, 217 N. Y. 439, 111 N. E. 1081. Such a decree rendered the marriage void from the beginning. Perry v. Perry, supra. In 1830, however, regulations were adopted affecting marriage and divorce. R. S. pt. 2, c. 8. These regulations begin with the statement that marriage should continue to be a civil contract to which the consent of parties capable in law of contracting shall be essential. Certain marriages are then declared to be absolutely void. Other marriages, among them those obtained by force or fraud, are void ‘from the time their nullity shall be declared by a court of competent authority.’ No subsequent marriage may be contracted until such decree is obtained.

These provisions resolved any doubt as to whether a marriage induced by fraud was void or voidable. But was it the intention also to alter the rule that when the decree was pronounced the marriage was void ab initio? We fail to find evidence of such intent. The marriage shall be void from the time its nullity shall be declared by a court. Consent is essential to the contract. No consent; no marriage. The court finds no consent. It therefore nullifies the marriage. It declares there was no marriage. From that monent the marriage is void. As we have seen, a void marriage is void for all purposes from its inception. All that was meant was that no longer might husband and wife upon their own responsibility determine that they were free from the contract. Such a determination required the concurrence of the court. Only when that was obtained did the marriage become void. But when it was obtained the marriage was nullified, and all the consequences of a void marriage then followed.

Otherwise, we have a ceremony performed, as the court finds, without the consent the statute states to be essential, perfectly valid until set aside by decree, a nullity only from the time the decree is entered. Various results follow such a conclusion. The wife would have an inchoate right of dower in any real property of which the husband was seized before the decree. Rights of curtesy might exist. The children would be legitimate. Other provisions of the statute show, however, that there was no such intention. ‘The chancellor may, by a sentence of nullity declare void a marriage contract,’ if consent was obtained by force or fraud. Article 2, § 20. What he does is to nullify such a contract because it is void. A marriage of an idiot or lunatic may be annulled after his death on the application of an interested relative. Sections 24, 25. If valid until such a decree, there could be no relative materially interested. In full force at the idiot's death, his property would descend and be distributed under conditions then existing. Children of such a marriage would be legitimate, but the Legislature says they shall inherit only from the parent of sound mind. Section 28. So a marriage induced by fraud or force may be annulled after the death of the injured party. Again, what relative could be interested? Section 30. Courts may require the children of such a marriage to be supported by the guilty party. Section 32. Why this provision, if they were legitimate? A sentence of nullity is conclusive evidence of the invalidity of the marriage in all courts and proceedings (section 37), not of its invalidity from the time the decree is pronounced. The revisers' note to these sections indicate what was in their mind:

‘Some of these marriages are absolutely void by existing law. But it is believed that the interests of society and of the parties concerned will be best promoted by placing them on the ground stated in this section.’

Subsequent legislation enforces the same construction. By chapter 225 of the Laws of 1903 children of a marriage annulled because the parents were under the age of consent were made legitimate. The Code of 1919 made provision with regard to children of a marriage annulled because of idiocy or lunacy, and said the child was legitimate as to the sane parent and might be declared by the court legitimate as to both parents. If the same result was reached because of force or fraud, the child was deemed legitimate unless the court declared otherwise. Section 1750. All this would have been unnecessary, were the children...