Newins' Estate, In re

• Decision Date: 04 June 1962
• Citation: 229 N.Y.S.2d 279,16 A.D.2d 436
• Parties: In the Matter of the ESTATE of W. Lawrence NEWINS, deceased. Celeste C. Newins, Administratrix c.t.a., and Richard L. Newins, devisee, Appellants; Esther Connell Newins, individually and as General Guardian of Lenore R. Newins; Raymond A. Smith, Jr., Special Guardian of Lenore R. Newins; and Emil DePetris, Special Guardian of Lawrence Edward Conklin, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 279

229 N.Y.S.2d 279

16 A.D.2d 436

In the Matter of the ESTATE of W. Lawrence NEWINS, deceased Celeste C. Newins, Administratrix c.t.a., and Richard L Newins, devisee, Appellants; Esther Connell Newins individually and as General Guardian of Lenore R. Newins Raymond A. Smith, Jr., Special Guardian of Lenore R. Newins; and Emil DePetris, Special Guardian of Lawrence Edward Conklin, Respondents.

Supreme Court, Appellate Division, Second Department.

June 4, 1962.

Gordon M. Lipetz, Riverhead, for appellant Celeste C. Newins.

Davidow & Davidow, Patchogue, for appellant Richard L. Newins; Wallace F. Davidow, Patchogue, of counsel.

Griffing, Smith, Tasker & Lundberg, Reginald C. Smith, William W. Esseks and Pierre G. Lundberg, Riverhead, for respondents Esther C. Newins and Lenore R. Newins.

Raymond A. Smith, Jr., East Hampton, special guardian of Lenore Newins, respondent.

Emil DePetris, Riverhead, special guardian of Edward Conklin, respondent, rests on briefs of appellants.

Before UGHETTA, Acting P. J., and KLEINFELD, BRENNAN, RABIN and HOPKINS, JJ.

UGHETTA, Acting Presiding Justice.

We are here concerned with the status as distributees of a woman who had entered into a purported marriage with testator and of their infant daughter.

Testator was born in 1906. Apparently he resided all of his life in Center Moriches, Long Island. On January 27, 1926 he married Kathleen Sheppard. On July 14, 1927 appellant Richard L. Newins, hereinafter referred to as Richard, was born of that marriage; he is an only child. On September 28, 1936, Kathleen procured a final decree of divorce in the Supreme Court, Nassau County. She is still living.

Testator could not lawfully remarry in this State without permission of the court in which the judgment of divorce was rendered (Domestic Relations Law, §§ 6, 8). The statute is to be deemed part of the divorce decree (Newins v. Newins, 10 A.D.2d 856, 199 N.Y.S.2d 266, leave to appeal denied 8 N.Y.2d 707, 202 N.Y.S.2d 1027, 168 N.E.2d 490).

On June 26, 1937 testator married Beatrice Field in New Jersey. She died in September, 1950. There were no children of that marriage.

In 1952, while unmarried, testator made the will which has been admitted to probate. After devises to Richard and another person, and after legacies to five individuals, he gave the residuary to his brother Edward, and named him sole executor.

On February 10, 1959 testator and respondent Esther Connell Newins, hereinafter referred to as Esther, were married at Riverhead, Suffolk County. In his application for the marriage license testator stated that the proposed marriage would be his second; that he is not a divorced person; that his former wife is dead; and that no legal impediment exists as to his right to enter into the marriage state.

On April 30, 1959, a child of this purported third marriage was born--respondent Lenore R. Newins, hereinafter referred to as Lenore.

Testator died on July 1, 1959.

In his petition for probate, brother Edward, the named executor, set forth as distributees not only appellant Richard, but also respondent Esther, as wife, and respondent Lenore, as a daughter of the testator. Petitioner Edward died during the course of ensuing proceedings. His wife, Celeste, was thereafter appointed as administratrix c. t. a. Richard moved to strike out the appearance of Esther and to dismiss the special guardian for Lenore on the ground that they were not interested persons, in that without court permission the purported marriage of Esther to testator was void under the foregoing provisions of the Domestic Relations Law. Esther and Lenore thereupon sought a construction of the will that the marriage of testator to Esther be deemed valid; that Lenore be declared the legitimate issue of a valid marriage or be declared legitimate in any event, pursuant to section 1135 of the Civil Practice Act, and be declared to be entitled to take as an after-born child under section 26 of the Decedent Estate Law.

In the first of three determinations, made by his decision after a hearing and stipulation of facts and documentary proof, the learned Surrogate denied the motion of Richard to strike out the appearances of respondents Esther and Lenore. He did so, not on the merits, but on the ground that they were properly cited because they were 'presumptively' the widow and daughter of testator. This was error. There is no doubt that respondents Esther and Lenore were properly cited. The motion, however, had to do with their interest in the estate. It should have been determined on the merits (Matter of Cook's Will, 244 N.Y. 63, 72, 154 N.E. 823, 826, 55 A.L.R. 806; Matter of Browning's Estate, 153 Misc. 564, 276 N.Y.S. 262, 267, 270; Surrogate's Court Act, § 314, subd. 10).

The determination is virtually academic, however, as the Surrogate held, on motion of said respondents for construction (with the same objective of determining their status) that Lenore presumptively is a legitimate child. Such holding necessarily implied that the marriage of her parents was lawful. The Surrogate reasoned that the proof of void marriage which had been presented was insufficient to overcome the presumption of Lenore's legitimacy. Of course, if the marriage was void under section 8 of the Domestic Relations Law (see Polizzi v. Polizzi, 13 Misc.2d 309, 177 N.Y.S.2d 935), the good faith of Esther in entering into it would be of no avail (Matter of Moncrief's Will, 235 N.Y. 390, 139 N.E. 550, 27 A.L.R. 1117; Landsman v. Landsman, 302 N.Y. 45, 48, 96 N.E.2d 81, 82); and Lenore, unless judicially legitimatized, would take nothing save as allowed her by statute (Bell v. Terry & Tench Co., 177 App.Div. 123, 163 N.Y.S. 733; cf. Decedent Estate Law, § 83, subd. 13).

An attack on legitimacy is usually based on (1) lack of access of the purported father, or (2) bar of a pre-existing marriage as of the time that the parents had wed. In the familiar Matter of Findlay, 253 N.Y. 1, 170 N.E. 471, a wife in England ran off with another man in 1864. The illicit union continued in England to about 1875 (year of birth of the person claiming as son of the wronged husband) and thereafter in this country until it was terminated by death. It was held that the presumption of legitimacy would not bear the strain of reliance upon the possibility that the husband visited the wife while she was living in adultery away from him. Cardozo, Ch. J., writing for a unanimous court, reduced the extravagant expressions of the effect of the presumption, noted in early authority, to this: 'What is meant by these pronouncements, however differently phrased, is this, and nothing more, that the presumption will not fail unless common sense and reason are outraged by a holding that it abides' (253 N.Y. p. 8, 170 N.E. p. 473).

It is settled that the presumption of legitimacy of children of a subsequent purported marriage will withstand attack unless it be shown that the original marriage was lawful and continuously remained so until the time of the subsequent marriage (Matter of Dugro's Will, 261 App.Div. 236, 25 N.Y.S.2d 88, affd. 287 N.Y. 595, 38 N.E.2d 706; Matter of Callahan's Estate, 142 Misc. 28, 254 N.Y.S. 46, affd. 236 App.Div. 814, 259 N.Y.S. 987; 262 N.Y. 524, 188 N.E. 48; Barker v. Barker, 92 Misc. 390, 156 N.Y.S. 194, modified 172 App.Div. 244, 158 N.Y.S. 413; Matter of Biersack, 96 Misc. 161, 159 N.Y.S. 519, affd. 179 App.Div. 916, 165 N.Y.S. 1077). As in Biersack (p. 166, 159 N.Y.S. p. 523), the expression of Lord Cottenham is invoked, viz.: 'A presumption of this sort, in favor of marriage, can only be negatived by disproving every reasonable possibility. * * * You should negative every reasonable possibility.'

Progeny will not serve, however, to metamorphose a bigamous marriage into a valid one (Johnson v. Johnson, 270 App.Div. 811, 59 N.Y.S.2d 698, affd. 295 N.Y. 477, 68 N.E.2d 499; Matter of Vargo's Estate, 282 App.Div. 701, 122 N.Y.S.2d 4; Matter of Wright's Estate, 137 Misc. 391, 243 N.Y.S. 538; Matter of Wood's Estate, 203 Misc. 809, 119 N.Y.S.2d 110).

It comes to this: If all reasonable possibilities of lawfulness of the subsequent marriage have been rebutted the presumption of legitimacy is extinguished.

The Surrogate has held that there was lack of satisfactory proof of the validity of the testator's first marriage. Such holding is an example of what is characterized in Matter of Findlay (supra, 253 N.Y. p. 13, 170 N.E. p. 475) as 'the presumption of legitimacy gone mad.' Indulgence of such presumption on behalf of Lenore would carry with it the implication that Richard was illegitimate. We have the marriage certificate of Kathleen and testator on January 27, 1926 and the undisputed stipulated testimony of Kathleen detailing her lawful marriage, with Richard as the child thereof. It is admitted in the reply of Esther and Lenore that 'the decedent was divorced by Kathleen Sheppard Newins, his first wife, in the year 1936.' (Emphasis supplied.)

Next, the Surrogate regarded the presumption of legitimacy as sufficient to overcome the presumption of continuance of validity of the first marriage to the time of the divorce decree. The difficulty with this holding is that the case is not one of pre-existing marriage as a bar to validity of a subsequent one. The marriage of Esther was not rendered unlawful by a pre-existing marriage. Esther's marriage is void because the statute says it is if it was entered into without court permission. The 1936 divorce decree has never been the subject of attack.

The final possibility relied on by the Surrogate is that permission to remarry was in fact procured by testator. But the records of the County Clerk of Nassau County...