Macklin's Estate, In re

• Decision Date: 19 May 1975
• Citation: 82 Misc.2d 376,371 N.Y.S.2d 238
• Parties: In re ESTATE of John MACKLIN. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 238

371 N.Y.S.2d 238

82 Misc.2d 376

In re ESTATE of John MACKLIN.

Surrogate's Court, New York County.

May 19, 1975.

Donald D. Olman, New York City, for claimant, Alice T. Allen.

James G. McGoldrick, New York City, for objectants, Mary Macklin and George H. Macklin.

Joseph T. Arenson, New York City, for the Public Administrator.

Harold D. Kaplan, New York City, guardian ad litem for unknown distributees.

Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, pro se (Laura Werner, New York City, of counsel).

Francis M. McInerney, Jr., Jersey City, N.J., for claimant (Donald D. Olman, New York City, of counsel).

S. SAMUEL DiFALCO, Surrogate.

In this proceeding by the Public Administrator to settle his account, a paternal aunt of the decedent on the one hand and three siblings of the half-blood on the other claim the balance of this estate. Schedule G of the account as originally filed recognizes the aunt as the sole distributee. The siblings of the half-blood have filed objections.

Decedent was born in 1900. He was the only child of a marriage of John T. Macklin and Jennie Macklin. John T. Macklin, the father of the decedent, and Jennie Macklin separated sometime in 1903. The father of the decedent in 1913 established a relationship with one Lena Furst. Three children, the objectants, were born of the relationship between John T. and Lena, one daughter and two sons. They claim relationship as siblings of the half-blood to the decedent. Their claim is opposed by the sister of the decedent's father. Lena had been born in Germany. Lena's parents had a shop in New York City and a farm in upstate New York. Lena died in 1927. She had met the decedent while working in her parents' shop in New York City and their relationship started in 1913. The objectant Mary was born of this relationship in New York City on July 1, 1915. By November 1919 the decedent and Lena, the mother of these objectants, were living together at 107 Chandler Avenue in Linden, New Jersey. They lived there continuously until 1927 when Lena died. The other objectants were born in the Linden, New Jersey house, namely, Francis Thomas and George Henry. The neighbors knew the decedent John and Lena during this period as husband and wife. They held themselves out as married in Linden, New Jersey. On visits to the farm of Lena's parents in upstate New York, they shared the same bedroom and were already regarded as being married. Lena readily accepted the appellation 'Mrs. Macklin'. There is in evidence a hospital record wherein Lena was admitted to the hospital with the consent of her 'husband, John Macklin'.

Sue Husosky testified. She was not related to John or Lena Macklin. She lived across the street from them when she was a child beginning in about 1924 when she was twelve. Her testimony shows a good recollection of the time period. She had the impression that they were married. She saw the Macklin's as a family group and demonstrated a good memory of the Macklin family. She said she called Lena, Mrs. Macklin. She believed the three children to be John's and Lena's. Mary, one of the objectants, (as a child) called Lena and John 'mother and pop' or 'mama and papa' according to Mrs. Husosky. The witness said that Lena told her mother that Lena and John were married.

One John Sinnot testified. He lived one block away from the Macklins for seven or eight years and after about 1933 or 1934 lived in the Macklin house. Although he did not know the Macklins, he 'took it to be that Macklins owned it'--the house that is, and the children were always referred to by the people on the block as the 'Macklin kids'.

Susan Haosleiter, Sue Husosky's sister, testified. She, too, lived across the street from the Macklins. She remembers the whole family by name and said that she always called Lena 'Mrs. Macklin' and John 'Mr. Macklin'. 'We knew them as Mr. and Mrs. Macklin'. The children called John 'Pop' and Lena 'Mom.'

Josephine Krahling, who lived across the street from the Macklins starting in 1924, testified. As to Lena she testified: 'I knew her as Mrs. Macklin.' She further stated: 'It was mentioned that she is married, she told me she was married.'

Admitted into evidence was the deposition of Mary K. Furst. Her husband's parents, Nicholas and Mary Augusta Furst, were also Lena's parents. She visited often at the Macklin home in New Jersey after 1919. She testified that Lena's husband's name was John Macklin. John arranged Lena's funeral. She said: 'I took it for granted they were married.' John always referred to Lena as 'my wife' and the two celebrated anniversaries.

On the probate petition for John Macklin's will, his three children are listed and their mother's name is given as Lillian Furst Macklin. On the U.S. Department of Commerce census taken April 1, 1930 all three children are enumerated in the family of John Macklin. George's birth certificate lists his father as John Macklin and his mother's maiden name as Lillian Furst. The same is true of Francis's birth certificate. On Lena's death certificate her husband's name is listed as John Macklin and he has signed as the informant. All of these factors establishing a common-law relationship occurred during a period when the law of New Jersey and New York recognized common-law marriages as valid. The New Jersey law is: Tit. 37, c. 1 § 10: which outlaws common law marriage as of December 1, 1939 and is effective as of July 18, 1939. The New York law was in like vein until April 30, 1933.

The court finds that under New Jersey law a common-law marriage has been established. In New Jersey: 'Cohabitation and reputation raise a presumption of a preceding marriage, * * * and the strength of the presumption is in direct ratio to the length of the cohabitation.' (Franzen v. Equitable Life Assurance Society of United States, 130 N.J.L. 457, 466, 33 A.2d 599, 605; Dunn v. O'Day, 18 N.J.Misc. 679, 681, 16 A.2d 195; Simmons v. Simmons, 35 N.J.Super. 575, 581, 114 A.2d 577.)

Although 'common law marriages are no longer recognized * * * that legislation did not change the laws as to those marriages which were consummated prior to 1939.' (Smith v. Hrzich, 1 N.J. 1, 4, 61 A.2d 497, 498). Further, 'A marriage contracted in New Jersey in accordance with our laws is valid everywhere.' (Franzen v. Equitable Life Assurance Soc. of United States, supra).

In New Jersey prior to 1939 a contract of marriage followed by cohabitation is just as lawful as if the marriage had been ceremoniously celebrated (State v. Thompson, 76 N.J.L. 197, 199, 68 A. 1068).

In Jackson v. Jackson, 94 N.J.Eq. 233, 113 A. 495, aff'd 94 N.J.Eq. 233, 118 A. 926) the facts showed a promise of marriage followed by cohabitation. At pages 236--237, 113 A. at page 496, the court therein said:

'Marriage is a civil contract, and no ceremonial is indispensably requisite to its creation. * * * Where there is no ceremonial marriage, there must be an agreement entered into between the man and the woman, in words of the present tense, to live together as husband and wife. There are probably but few instances of mutual consent, by which each party in precise or unambiguous terms takes the other as spouse, but no particular words are necessary to declare an intention to enter into a contract of marriage. If from what was said by the parties, aided by the circumstances surrounding their entering upon their relationship, it can be gathered that they proposed to enter into a contract thenceforth to live as husband and wife, it will be sufficient * * *.' (Citations omitted.)

If the contract terms of existence are ambiguous 'the intent of the parties may be examined into; and if, by their subsequent cohabitation, it is plainly apparent that they meant matrimony, they are husband and wife' (Bey v. Bey, 83 N.J.Eq. 239, 263, 90 A. 684, 693).

It is not feasible to have witnesses to a common-law marriage in most cases. 'Where, as here, there were no witnesses to the common-law marriage some other mode of proof becomes necessary to show that the parties intended to enter into such a relation. The doctrine of habit and repute ordinarily supplies such proof, but each case must be resolved on its particular facts.' (Winn v. Wiggins, 47 N.J.Super. 215, 221). This was further explained in Castill v. Hill, 55 N.J.Eq. 479:

'The general rule, under proofs of the kind considered, is that where a man and a woman constantly live together, ostensibly as man and wife, claiming to be such, and so demeaning themselves towards each other, and are received into society and are treated by their friends and relations as having and being entitled to that status, the law, in favor of morality and decency, will presume that they have been legally married. Such cohabitation and reputation are said to be matrimonial in distinction from that occasioned, hidden and limited cohabitation which marks the meretricious relation.' See also (Simmons v. Simmons, 35 N.J.Super. 575, 580, 114 A.2d 577).

The record indicates that there was some cohabitation in New York. The New York law and the New Jersey law in respect to the proof required on common-law marriage are much the same. In Matter of Benjamin, 34 N.Y.2d 27, 355 N.Y.S.2d 356, 311 N.E.2d 495, Judge Jasen reversed the prior decision. Writing for the Court of Appeals he said at page 31, 355 N.Y.S.2d at page 359, 311 N.E.2d at page 497:

'Turning to the record before us, the Surrogate found circumstantial proof of cohabitation and reputation from the birth of Elouise in 1929 to Jacob and Olga. It was held, however, that direct proof of the marital agreement was necessary to overcome the strong presumption of validity attaching to the second or ceremonial marriage. We believe the Surrogate's holding emphasizes unduly the role of direct proof in establishing a common-law marriage. The agreement to live as man and wife is what need be shown and it need not be proved in any particular way. (Matter of Haffner, supra (254 N.Y. 238, 172...