New York Probate and Estate Administration Lawyer Blog
A New York Probate Lawyer said that the petition in this probate proceeding describes the respondent, as decedent’s ‘alleged widow’. The latter claims that she married decedent by proxy in a civil ceremony performed in San Mauro La Bruca, Province of Salerno, Republic of Italy, on October 26, 1950, in accordance with the laws of that Republic. Decedent’s five children of a prior marriage question the performance and validity of such marriage.
A New York Estate Lawyer said that a preliminary hearing was ordered on the issues so raised and proof was taken thereon. Nine documents were admitted in evidence without objection in support of the widow’s claim. Exhibit 1, in English, is an application by decedent for the issuance of an immigration visa for the widow’s entry into this country. Exhibits 2 to 9, inclusive, are certified copies of records of the Bureau of Vital Statistics of San Mauro La Bruca aforementioned, which were required by the Civil Code of Italy for the performance of the proxy marriage in question. These documents are in Italian, translated into English and properly authenticated.
Thereafter, decedent executed a power of attorney before a notary public in Brooklyn, N. Y., by which he constituted and appointed his nephew, domiciled and residing in San Mauro (decedent’s native town), ‘to represent him in the celebration of a civil marriage in the Town of San Mauro La Bruca, Province of Salerno, Republic of Italy, between himself and the daughter of the decedent domiciled and residing in San Mauro’. Decedent also executed a petition to the Attorney General of the Court of Appeals of Naples, Italy, seeking permission to marry the said woman in San Mauro by power of attorney granted for that purpose as required by Article III of the Civil Code of Italy, which was granted by the Attorney General pursuant thereto on September 21, 1950.
A Nassau County Probate Lawyer said that an expert on Italian Law whose qualifications are not questioned, testified that he procured all of the documents marked Exhibits 2 to 9, inclusive, at the request of the widow, that he had read them before the hearing, fully knew the contents thereof and that after examining the same he was of the opinion that a valid marriage by proxy had been performed by the Mayor of San Mauro, pursuant to Article 111 of the Civil Code of Italy as evidenced by Exhibit 6.
Staten Island Probate Lawyers said that certain objections interposed by the widow’s opponents require disposition. The objection of respondent, one of decedent’s children by his first marriage, made after all the documents were marked in evidence came too late and in addition was not within the issues. It is therefore overruled. The marriage was performed through the agency of decedent’s nephew, as his attorney in fact. Her testimony was not objected to on the ground that she was interested in the event. The rule harmonizing the conflicting authorities on the subject, laid down in a case, requires overruling of the objection.
The prohibition of section 347 of the Civil Practice Act does not extend to personal transactions with the agent of a deceased person, and an interested party may testify to transactions with an agent though the principal and agent or either of them is deceased. Furthermore, the widow’s testimony objected to is cumulative and would not affect the result event if struck out, since the marriage as well as the identity of the parties thereto uncorroborated by her testimony are amply established by documentary evidence. Moreover, the objections to the testimony were expressly waived on the record.
When the marriage in question was performed the decedent was a widower and she was single. They were not related by blood or affinity. Cohabitation was not required to validate the marriage under the law of Italy.
The only question remaining is: Does the law of New York State recognize a proxy marriage celebrated in Italy in conformity with its law? The Court has studied and considered the entire body of the proof and the contentions of the parties and has reached the conclusion that decedent’s widow has sustained her claim.
The Court of Appeals of this state regards as settled law that the legality of a marriage between persons sui juris is to be determined by the law of the place where it is celebrated, unless it is repugnant to the public policy of this state, such as marriages prohibited by positive statute and those which contravene natural law.
The Domestic Relations Law of this state provides: § 10. Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.’
Section 5 does not expressly declare void a proxy marriage celebrated in a foreign state or country. Section 12, however, provides that though no particular form or ceremony is required when a marriage is solemnized in this state, ‘the parties must solemnly declare’, in the presence of the authorized celebrant and attending witness or witnesses, ‘that they take each other as husband and wife’.Though proxy marriages have never been authorized by statute in this state, they have never been considered repugnant to its public policy and do not contravene the natural law. A comprehensive annotation on proxy marriages is found in a case, which in part says:
‘There are reports of proxy marriages in ancient times, and it is certain that they were permissible in certain instances under canon law and the late Roman law. A papel decree on proxy marriages was issued about 1300 A.D. In England the canon law concerning proxy marriages was adopted in the King’s Ecclesiastical Law, and apparently this was the law of England until the adoption of the Marriage Acts in the eighteenth century. It is therefore possible, although there are no judicial decisions on the question, that the proxy marriage is a part of the common law in this country.
‘Since the proxy marriage celebrated in the District of Columbia was valid in that jurisdiction both as a common-law marriage and as a marriage by proxy, the marriage must be recognized as valid in this State.’ For cases in other states holding that a foreign proxy marriage will be recognized see ‘Recognition of Foreign Marriages’, 170 A.L.R. annotation p. 949 et seq.
It follows that the marriage by proxy in San Mauro La Bruca, Province of Salerno, Italy, on October 26, 1950 must be recognized in this state. the wife is adjudged and decreed to be the lawful widow of decedent. Settle decree on notice.
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