Opinion
December 10, 1970
Appeal from the Cayuga County, Surrogate's Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.
Order and decree unanimously reversed on the law and facts, with costs to appellant payable out of the estate, and matter remitted to Surrogate's Court, Cayuga County, for further proceedings in accordance with the following memorandum: On December 27, 1935 Helen Frost, decedent's first wife, obtained an interlocutory decree of divorce in Supreme Court, Cayuga County, which contained a provision prohibiting the decedent from remarrying during the lifetime of the plaintiff without express permission of the court. Helen Frost was still living at the time of this accounting proceeding and no order has ever been granted varying the prohibition against remarriage by decedent. In 1939 decedent contracted a marriage with one Isabel in the State of Pennsylvania which was terminated by her death on October 12, 1962. Respondent administrator is the child of that marriage. On July 6, 1963 decedent went through a ceremonial marriage with appellant in the Town of Fleming, New York without obtaining permission from the court and thereafter lived with her as husband and wife in this State. They also traveled together through several States and in December, 1963 or January, 1964, by the administrator's own testimony, occupied premises in Florida for two weeks as a married couple. In December, 1964 evidence was presented by appellant in Supreme Court, Cayuga County, which resulted in an annulment being granted, establishing that the ceremonial marriage between the parties in New York on July 6, 1963 was invalid because of the absence of any order permitting decedent's remarriage in this State. However, no decree was ever entered in the annulment action. After the death of decedent on September 25, 1967 his son was appointed administrator and subsequently made application for settlement of his accounts, naming appellant as widow of the decedent but failing to provide for her statutory rights to exempt property as a surviving spouse. Appellant filed objections but these were disallowed upon the court's conclusion, after a hearing without a jury, that appellant was not the lawful widow of decedent either by reason of the 1963 ceremony or by virtue of a common-law marriage since there was no agreement per verba de praesenti to effect such a marriage. There is no question, and appellant does not make any contrary claim, that the ceremonial marriage performed in the Town of Fleming in 1963, while the prohibition against decedent's remarriage was outstanding, was of no effect. However, the conclusion of the Surrogate that a common-law marriage had not been established, is contrary to the evidence of record. It is conceded that appellant and decedent, several months after the performance of the ceremonial marriage, lived together as husband and wife in the State of Florida. Since, at that time, both parties believed that they were validly married to each other by virtue of the prior formal marriage ceremony, an affirmative and express agreement ( per verba de praesenti) initiating the common-law marriage was not required. Continued cohabitation under an assumed valid but, in fact, invalid, ceremonial marriage is sufficient to validate a common-law marriage under Florida law. ( Matter of Farber v. U.S. Trucking Corp., 26 N.Y.2d 44, 54.) The fact that decedent's prior divorce decree had prohibited his remarriage had no effect on the Florida marriage; that prohibition related only to remarriage within New York and could have no extraterritorial effect. ( Matter of Farber v. U.S. Trucking Corp., supra, p. 54.) There was, therefore, no impediment to the creation of a common-law marriage in Florida, ( Matter of Garfield, 30 A.D.2d 203, 206.) Such a marriage, validly created under the laws of that State, must be recognized in this jurisdiction. ( Shea v. Shea, 294 N.Y. 909.)