In Re May\u27s Estate, __ App. Div. __, 117 N. Y. S. 2d 345 (3d Dep\u27t 1952)

Tizzano, Marion James

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 2 Number 2 Article 15 4-1-1953 Conflict of Laws—Foreign Marriage Incestuous by Lex Domicilii Held Valid Marion James Tizzano Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Conflict of Laws Commons, and the Family Law Commons Recommended Citation Marion J. Tizzano, Conflict of Laws—Foreign Marriage Incestuous by Lex Domicilii Held Valid, 2 Buff. L. Rev. 325 (1953). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol2/iss2/15 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RECENT DECISIONSThe present decision reflects the modern trend requiring thetestator to state explicitly any election he may intend in his wifl.However, it appears quite possible that a different decision mightbe reached in other jurisdictions by allowing recovery in quantummeruit only for the difference between the legacy and the valueof plaintiff's services.Frank J. LaskiCONFLICT OF LAWS-FOREIGN MARRIAGE INCESTUOUSBY LEX DOMICILIl HELD VALIDAn uncle and niece, at all times domiciled in New York, weremarried in Rhode Island, where such a marriage is valid. By NewYork Dom. ReL Law § 5 (3) a marriage between uncle and nieceis incestuous and void. The niece died, and her husband soughtletters of administration. Held: Letters granted. In re May'sEstate, - App. Div. -, 117 N. Y. S. 2d 345 (3d Dep't 1952).The English courts hold that a marriage involving an Englishdomiciliary, forbidden by English law, although valid where per-formed, is vbid and the children illegitimate. Brook v. Brook, 9H. L. Cas. 193 (1861) ; In re Paine [1940] 1 Ch. 46. It is generallysaid by American courts that a marriage valid by the law of theplace of celebration is valid everywhere. Van Voorhis v. Brintnall,86 N. Y. 18 (1881); Fensterwald v. Maryland, 129 Md. 131, 93 Atl.358, 3 A. L. R. 1562 (1916) ; Goonmen, CONFLICT OF LAws 116 (3ded. 1949). The marital status is of primary concern to the domi-ciliary state. Accordingly, this general rule has been limited ongrounds of policy, and marriages otherwise valid have not beenrespected where forbidden by the lex domicilii on grounds ofpolygamy, Earle v. Earle, 141 App. Div. 611, 126 N. Y. Supp. 317(1st Dep 't 1910) ; miseegenatibn, Green v. State, 58 Ala. 190 (1877) ;bigamy, Bennett v. Smith, 21 Barb. 439 (N. Y. 1856) ; nonage, Rossv. Bryant, 90 Okl 300, 217 Pac. 364 (1923); incest, United Statesv. Rodgers, 109 Fed. 886 (E. D. Pa. 1901).By the common consent of Christian nations, marriages be-tween persons in the direct line of ascent and descent andbetween brother and sister are incestuous. Wightman v. Wight-man, 4 Johns. Ch. 343 (N. Y. 1820); Commonwealth v. Lane, 113Mass. 458 (1873); In re Miller's Estate, 239 Mich. 455, 214 N. W.428 (1927). However, there is no general agreement as to theincestuous character of marriages between aunt and nephew,Martin v. Martin. 54 W. Va. 301, 46 S. E. 120 (1903); Incuria v.Incuria, 155 Misc. 755, 280 N. Y. Supp. 716 (Dom. Rel. Ct. 1935);BUFFALO LAW REVIEWuncle and niece, Stevenson v. Gray, 56 Ky. 193 (1856); Audley v.Audley, 196 App. Div. 103, 187 N. Y. Supp. 652 (1st Dep't 1921) ;first cousins, Meisenhelder v. Chicago & N. W. By. Co., 170 Minn.317, 213 N. W. 32 (1927) ; Leefield v. Leefield, 85 Ore. 287, 166 Pac.952 (1917); STUMBERG, COX-TLICT oF LAws 284 (2d ed. 1951). How-ever, New York has expressly defined what relationships constituteincest, in Dom. Rel. Law S 5: "A marriage is incestuous and voidwhether the relatives are legitimate or illegitimate between either* . . (3) An uncle and niece or an aunt and nephew."Whether this statute is to apply to a marriage celebratedoutside of the state might be determined by several factors. Thecourt in the instant case was probably deterred from such a con-struction because numerous children had been born of a marriageunchallenged for three decades. Children of a void marriage,however, are now deemed legitimate. C.P.A. § 1135 (5). Thecourt also relied heavily on the supposed authority of Van Voor-his v. Brivtnall, supra, in which a foreign marriage in apparentcontravention of N. Y. Dom. Rel. Law § 8 was sustained on thegrounds that § 8 was penal in character and there was no legis-lative intent to give it extraterritorial effect. It is true that .$ 5(3), involved in the instant case, is also supported by penal sanc-tions. N. Y. PENAL L.,w § 1110; N. Y. Dor. REL. LAW § 5. How-ever, subdivisions one and two of § 5, covering ascendants anddescendants and brothers and sisters, clearly have extraterri-torial effect, Wightnman . Wightman, supra, although supportedby the same penal sanctions. It is possible, of course, that theLegislature intended that § 5 (3), adopted at a later time and cover-ing marriages morally and eugenically less odious, should receivea different construction than § 5 (1-2). However, it seems morelikely that a uniform construction of § 5 was intended. So far asthe penal aspect is concerned, a distinction between the Van Voor-his and instant cases seems possible. In the former, the prohibitionof the marriage was itself the objectionable penal feature, whilein the instant case it is possible to deny the marriage withoutinvoking the penal sanction. § 5 (3) may be taken as expressiveof the strongest public policy without any penal law being en-forced. This policy is meaningless if cases like Campione v. Cam-pione, 210 lisc. 590, 107 N. Y. S. 2d 170 (Sup. Ct. 1951), which isin exact accord with the principal case, are a correct statement ofthe law. And it is submitted that a policy based in part on prin-ciples of eugenics should not be thwarted by a mere crossing of astate line.Marion James Tizzano

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Conflict of Laws—Foreign Marriage Incestuous by Lex Domicilii Held Valid

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Conflict of Laws—Foreign Marriage Incestuous by Lex Domicilii Held Valid

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