Shea v. Shea

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: Shea v. Shea, 294 N.Y. 909, 63 N.E.2d 113 (N.Y. 1945)
• Decision Date: 19 July 1945
• Parties: Shea v. Shea

294 N.Y. 909

63 N.E.2d 113

Olga SHEA, Appellant,

v.Martin F. SHEA and Another, Respondents.

Court of Appeals of New York.

July 19, 1945.

Appeal from Supreme Court, Appellate Division, Second Department, 268 App.Div. 677, 52 N.Y.S.2d 756.

Action by Olga Shea, also known as Olga D. Lennox, against Martin F. Shea and Thomas E. Shea, as executors of the will of William J. Shea, deceased, for a judgment declaring that plaintiff was the wife and is now the widow of the deceased.

The plaintiff, a woman of mature years, had been employed for many years in a responsible position in New York City. Her first marriage had ended in a decree of divorce in Illinois in 1935. The trial justice found that before such marriage, and thereafter, she used the name of Olga Lennox in most of her business transactions; that the association of plaintiff and the deceased became close immediately after plaintiff's divorce; and that the parties desired a religious ceremony of marriage, but this was denied them because of plaintiff's prior divorce. Plaintiff voted as Olga Lennox, and the deceased continued to vote and make income tax returns as a single man. From all the evidence, however, the trial justice concluded that the parties had entered into a valid common law marriage outside the State of New York, and, as pointed out in the opinion of Mr. Justice Johnston on appeal to the Appellate Division, this view was shared by four members of that court. The Appellate Division divided on the question of whether the marriage was valid in New York. Mr. Justice Johnston, with whom two other justices concurred, favored application of the general rule that marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes, and took the view that the marriage was not invalidated by section 11 of the Domestic Relations Law as amended by Laws 1933, c. 606, Consol.Laws, c. 14, providing that no marriage shall be valid unless solemnized by specified clerics or officials. He held further that it was error to exclude, under section 347 of the Civil Practice Act, the testimony of a nephew and sister-in-law of the deceased.

The action was begun in the Supreme Court in 1941. An order in 1942 granting defendants' motion to transfer the action to the Surrogate's Court was reversed and motion denied, 265 App.Div. 962, 38 N.Y.S.2d 711. In 1943, an order granting defendants' motion for a bill of particulars was modified by striking out a...