In re the Judicial Settlement of the Account of Schmidt

The following facts have been agreed on by the parties: Carlos Schmidt was married in Germany on September 18, 1836. He lived with his wife for several years and left her in 1849 and came to America. On December 10, 1864, while his wife was living, he entered into a marriage ceremony with a widow named Maria Gleason; said Maria Gleason had two children, Thomas J. Gleason, the contestant, and Helen, who has since married. While Carlos Schmidt’s wife was still alive, the administrator Ottokar H.

During the lifetime of said Carlos Schmidt, the suggestion that they were not husband and wife was never raised, and from the date of the death of said Carlos Schmidt said Maria Gleason was always known as- his widow until her death on March 25, 1902.

Her son, by a previous marriage, Thomas J. Gleason, the contestant here, now comes forward with the contention, however, that because at the time of his mother’s marriage to Carlos Schmidt said Carlos Schmidt had a wife then living, that said marriage was absolutely void, and that, therefore, his half brother Ottokar H. D. Schmidt was not born in lawful wedlock, but was illegitimate, and consequently is not entitled to share in their mother’s estate, but that the mother’s -estate should be divided solely between the contestant and his sister, the children of the previous marriage to Gleason.

It does not seem possible that a person of any respectability would, for the sake of the slight pecuniary gain involved in this estate, be willing to stamp his brother as a bastard, and to have it judicially declared that his dead mother’s relations with the man she believed to be her husband were meretricious — but the courts have nothing to do with the sentimentality which should or should not prompt the parties before it, and notwithstanding that there maybe a feeling of loathing for the man who would take a position such as this contestant, yet it is, nevertheless, the duty of the court to consider calmly the questions of law to be applied to the admitted facts here.

The facts in this case are substantially similar to those in the case of Townsend v. Van Buskirk, 33 Misc. Rep. 287 , in which Justice Maddox held that even if the marriage be

In the case at bar, the complete innocence and good faith of Maria Gleason in entering into the marriage relations with Carlos Schmidt stand conceded, and Carlos Schmidt, while a wrongdoer in the sense that he married Maria' Gleason when he ought not do so by reason of his previous wife still being alive, appears to have done so in good faith, and with proper intentions, because he remained constant and true to her down to the date of his death, and for thirteen years after the death of his wife they continued in every possible way to act as husband and wife. Because there was a disability

Counsel for the contestant refers at great length to the case of O’Gara v. Eisenlohr, 38 N. Y. 296 , claiming that the case is decisive, and is contrary to the views of Justice Maddox. In my judgment that case does not touch upon the subject here under consideration at all. On the contrary, the main question in that case was the fact that the previous wife of the husband had disappeared. It was, therefore, contended that the court should, presume that she had died before her husband, on the theory that the law will sooner presume that she had died first, which would have involved no wrong, than that which will presume that the respondent and her pretended husband were living together in adultery.

That that is the sole contention in the case is evidenced by the following paragraph from the opinion, at p. 302: “ It is contended in this case that the presumption of law is that Rose Donnery died before her husband, when the consequence of her being alive is, that the respondent in this case and Donnery were cohabiting and living together as man and wife without any lawful marital relation existing between them.” This being the sole question decided, it is, therefore, not a matter which should be considered as controlling in making the decision herein.

The only other case cited by the contestant upon this branch of the subject is that of Foster v. Hawley, 8 Hun, 68 . But that case cannot be cited as in any way paralleling this. There the relations were concededly lustful in their origin. They were long continued, but were continued but a short time after the death of the man’s first wife. It also appeared that the woman pretending to be the wife of the deceased, at the termination of their relations, left the deceased, and contracted a marriage with some other man.

The cases quoted by the contestant do not, therefore, in

I shall, therefore, hold that assuming that the ceremony of marriage between Maria Gleason and Carlos Schmidt to have been absolutely void in consequence of the fact that at that time Carlos Schmidt had a wife living; that as Carlos Schmidt subsequent to the death of his first wife cohabited with Maria Gleason, and they lived together as husband and wife, a marriage will be presumed to have taken place.

The act of 1895 (eh. 531), which was subsequently incorporated into the Domestic Relations Law (L. 1896, ch. 272, § 18), provided that if the parents of a child (who would otherwise be illegitimate), subsequently married, that such child would thereupon be deemed legitimate. The effect of such marriage is, therefore, to legitimatize the birth of the administrator herein, Ottokar H. D. Schmidt, and he is, therefore, entitled to his distributive share of his mother’s estate.

Let decree be prepared accordingly, with costs to the administrator, to be paid by the contestant personally.

Decreed accordingly.