Geiger v. Ryan

Gaynor, J.:

The learned trial Judge stated at the close of the case that he would not stigmatize the plaintiff and the other two children, of the deceased by Daiton.'as illegitimate; that he would “ take advantage of the presumption of' law and find that it ” (i. e., the relation between the deceased and Daiton) “ was a matrimonial relation ”, although no ceremony of marriage was ever performed between them. .. It was, not at all necessary to decide the said children illegitimate, in order to give judgment for the defendant. He had married the deceased before- a civil magistrate in 1867,' and again in a Catholic church by :a- priest in 1871* she having changed to his faith, and lived with her as his lawful wife for 36 years after such civil marriage Until her death in 1963. Meanwhile Daiton, with whom the ' deceased had lived and cohabited prior'to 1867, had died in 1885, The undisputed evidence of the open cohabitation, of the defendant ‘ and' the deceased as husband and wife after Daiton’s death, i. e.,. until her death, under the' said ceremonial marriages, amply sufficed to prove that their relation during that period, at all events, was that of husband, and wife, and that he was her lawful widower. This being the ease, the. finding of her legitimacy, i. e., that the deceased and Daiton were husband and wife up to the time of his death in 1885, by reason of their cohabitation prior to 1867, in no way clashes with the fact that she was the defendant’s lawful wife at least after Daiton died in 1885. Other than the finding of fact that the defendant was not the widower of the deceased, the. judgment has nothing to stand on. And even if he was not her widower, his claim that he was, and also that he was her husband from the time of their marriage, based as it was on the two ceremonial marriages, and a continuous matrimonial life with her of 36 years, was in good faith and not fraudulent, as alleged in the complaint and found, and therefore served as an honest and legal basis for his claim and receipt of a widower’s interest in the property of the deceased.

The judgment should be reversed.

Rich and Miller, JJ., concurred; Hooker, J., read for affirmance; Hirsohberg, P. J., not voting.