Liberman's Estate, In re

• Decision Date: 14 March 1957
• Citation: 162 N.Y.S.2d 62,6 Misc.2d 396
• Parties: In re ESTATE of Philip LIBERMAN. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 62

162 N.Y.S.2d 62

6 Misc.2d 396

In re ESTATE of Philip LIBERMAN.

Surrogate's Court, New York County.

March 14, 1957.

Vaughan & Lyons, New York City, for Bertha Liberman.

Hess, Mela, Segall, Popkin & Guterman, New York City, for Norman J. Liberman, Dorothy Wichter and Lillian Duboff, executors and trustees and for Elsie Freedman, Ann Brodie and Joan A. Lipten.

John J. Cray, New York City, special guardian for Stuart B. Duboff and others, infants.

DI FALCO, Surrogate.

This is a proceeding instituted pursuant to section 145-a of the Surrogate's Court Act for a determination of the validity and effect of the election by the surviving spouse to take against the will. The deceased died on August 1, 1954 leaving a will which he had executed on March 17, 1953 and which was admitted to probate in this court on August 31, 1954. In that instrument, acknowledging the petitioner to be his wife, he named her as life beneficiary of a trust consisting of one-third of his residuary estate which has a conceded value in excess of $600,000. The petitioner contends that the will provisions for her benefit are subject to the infirmities held by the Court of Appeals in Matter of Wittner's Estate (301 N.Y. 461, 95 N.E.2d 798) to disqualify a trust from satisfying the minimal requirements prescribed by section 18 of the Decedent Estate Law in that invasion of the principal for the benefit of other persons is permitted. Consideration of this issue will be postponed for the determination of the other questions formulated by the pleadings.

The petitioner met the decedent in 1940. At that time she was still married to her first husband, one San Cohen. She obtained a divorce from Cohen in Nevada on June 12, 1942 but she now concedes that that divorce was invalid for want of jurisdiction and that as a result her marriage to the deceased which took place on June 27, 1942 was void. She contends, however, that a ceremonial marriage between the deceased and herself, celebrated on August 30, 1945 subsequent to the date of the death of her first husband, establishes her status as the widow of the deceased. Relying upon this state of facts she insists an ante-nuptial agreement between herself and the testator, dated June 18, 1942, was drawn with reference only to the marriage, now asserted to be invalid, which was solemnized in New Jersey on June 27th of that year and that because that marriage was invalid the ante-nuptial agreement falls and the waiver which it contains, since it bore no reference to the 1945 marriage between herself and the deceased, cannot now bar her from asserting her right to an intestate share in the estate.

The executors, resisting the claim, contend that the second marriage between the parties was invalid because of the failure to obtain a marriage license, because the Rabbi who performed the ceremony in this city on August 30, 1945 had not registered with the City Clerk in accordance with the provisions of section 11-B of the Domestic Relations Law and, finally, because his status as a clergyman was not affirmatively established by the petitioner. The pleadings thus fix the existence of a valid marriage between the petitioner and the deceased as the issue that must first be determined. This will depend upon the effect required to be given to the ceremony that took place on August 30, 1945. On that occasion, according to the testimony of one Harry Goldberg, he accompanied his father-in-law whom he described as Rabbi Max Levy, at the latter's request, to an office in a building located at 1441 Broadway in New York City. He stated that Rabbi Levy, now dead, there performed a Hebrew marriage ceremony between the deceased and the petitioner and issued to them a certificate written in Hebrew attesting to the fact of the marriage. This document which was received in evidence together with its English translation, bore the signatures of the deceased and the petitioner as principals and that of the witness as a witness on that occasion as well. Upon being cross-examined, Mr. Goldberg testified that his father-in-law had resided in New Jersey. He stated that he had never seen Mr. Levy deliver a sermon or perform the other duties of a Rabbi. He had not been present at his ordination, he had never been in a synagogue where Mr. Levy had officiated as a Rabbi and he knew of no Rabbinical organization of which the latter was a member. The petitioners rely upon these facts together with the parties' failure to obtain a marriage license and the failure of Rabbi Levy to register with the City Clerk in accordance with the provisions of section 11-B of the Domestic Relations Law as fatal to the performance of a valid ceremonial marriage.

Two of the reasons urged in support of the argument of the respondents are untenable for neither the failure to obtain the marriage license nor the failure of the clergyman to register can invalidate the marriage. Matter of Levy's Estate, 168 Misc. 864, 6 N.Y.S.2d 544; Berenson v. Berenson, 198 Misc. 398, 98 N.Y.S.2d 912; Heller v. Heller, 188 Misc. 608, 68 N.Y.S.2d 545. As Mr. Surrogate Delehanty pointed out in Matter of Levy's Estate, supra, the statutory requirements in this connection are addressed to the persons performing the ceremony rather than to the principals and section 25 of the Domestic Relations Law specifically validates such unlicensed ceremonies for it provides: 'Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age.'

This leaves for consideration the question of Rabbi Levy's qualifications to perform a valid marriage. The fact that he was a non-resident did not disqualify him (1921 Op.Atty.Gen. 259, 1911 Op.Atty.Gen. 138) and no proof whatever in support of the charge that he was not an ordained clergyman was offered by the respondents. They argue that his status as such was established only by the testimony of the witness Goldberg who testified that Mr. Levy, now deceased, had acted as a Rabbi and had told him that he had occupied that position. It is not enough to say, as the respondents do, that the qualifications of the clergyman cannot be established by the bare statement of his son-in-law when they have the burden, called in the cases a heavy one, of showing the invalidity of a marriage in the face of proof of the performance of a religious ceremony. Matter of Dugro's Will, 261 App.Div. 236, 25 N.Y.S.2d 88, affirmed 287 N.Y. 595, 38 N.E.2d 706; Denton v. Denton, 179 Misc. 681, 37 N.Y.S.2d 704; Ferraro v. Ferraro, 192 Misc. 484, 77 N.Y.S.2d 246. This is especially true where the parties have lived together for a number of years and acknowledged themselves to be husband and wife as was the case here. For the reasons stated, the court holds that the ceremony of August 30, 1945 resulted in the lawful marriage of the deceased and the petitioner.

Having reached this conclusion, the court is confronted next with the question of whether the widow's attempted exercise of the right of election is barred by the terms of the ante-nuptial agreement to which she was a party. This agreement was executed on June 18, 1942. It provided for a payment to the petitioner in the sum of $5,000 as a charge against the husband's estate 'in place and stead of all rights that as widow the (widow) might otherwise have either as dower in the real estate of the (decedent) or as a distributive share in the personal property of the (decedent) under any statutes now or hereafter, in force and effect.' The petitioner apparently concedes and the respondents insist that this agreement constituted a waiver of any rights that the petitioner might otherwise have had to share as a distributee in the estate of her husband. The petitioner contends, however, that the agreement was drawn with reference to the marriage, and that marriage only, which took place nine days after its execution. She argues that because that marriage was concededly invalid the agreement fell with it and is not now enforceable for the reason that it...