In re the Application for Letters of Administration on the Goods, Chattels & Credits of Spondre

This is an application brought on by the petition of Moses Spondre, the father of the deceased, to set aside our letters of administration

The testimony taken illustrates one of the very curious phases of urban life in this cosmopolitan seaport, where of late years have come so many from the remoter parts of Europe. The deceased, his father and his family, as. well as Rachel Spondre, all lived in the Province of Galicia, Austria, before their migration to this country. But it was in Rumania that the family or marital relations of Henry Spondre were constituted, quite in conformity, I think, with the curious license, which in some European countries, and even under some insular American governments, is tolerated.

It is the father of Henry Spondre who is seeking to revoke the letters of Rachel Spondre, and yet who is the main witness upon the matrimonial status of Rachel and Henry Spondre. If he succeeds in this proceeding he will take the little estate away from Rachel Spondre, who has always in this country lived as the wife of his son. The petition of Moses Spondre is signed by his mark, and yet I thought him not lacking in shrewdness or a certain sort of patriarchal dignity of demeanor.

Mollie Bass, the sister of Henry Spondre and the daughter of the petitioner, Moses Spondre, testifies that Henry Spondre and Rachel came finally to New York and Rachel then admitted to her that she was not married to Henry. Admissions claimed to be made to antagonistic witnesses are never a high order of evidence, and of themselves are insufficient to affect a status otherwise established. As it is, it is entitled, to little weight, for the reasons I shall hereafter mention. Vague admissions are always overborne by facts which

Rachel Spondre was then called by petitioner; she testified that she was now forty-three years old, which was confirmed by her much younger appearance on the witness stand, although Moses Spondre would make her out a very old woman, seventy or more, a gross exaggeration which shows bias, not enough to impeach him, but sufficient to affect the accuracy of the details of his testimony. Rachel came many years ago to this country as the wife of Henry Spondre. She states that she divorced Topelman ‘‘ by a rabbi and married by a rabbi.” No documentary proof of divorce was offered or asked for, nor did she produce a “ get.” None, I think, was necessary as one may always testify to his own status if it is not objected to by the adversary party. A marriage or a birth certificate is not necessary to establish those events. A “ get ” or Jewish “ bill of divorce ” is not, I think, essential to prove a Jewish divorce in the first instance. The necessity of producing records in our law refers to our records only, for in Jewish law itself the production of a “ get ” to prove a divorce was unnecessary. I find a singular confirmation of my own'opinion on this point in an opinion of Lord Kenyon’s in the year 1790. Ganer v. Lady Lanesborough, Peake’s N. P. Cas. 17.

It was conceded by counsel on the record, at my suggestion, that Henry and Rachel Spondre lived together in New York for the last twelve years as husband and wife, and were known in their neighborhood as husband and wife until Henry Spondre died. Petitioner was not prepared to prove that Rachel was not married to his son Henry Spondre, but his counsel rested on what he called ‘ ‘ presumptions of the common law ’ ’— presumptions certainly formulated for and by a very

An important fact established is that Henry Spondre and Rachel came to our shores as husband and wife, arid I will take notice of our own immigration laws requiring the marital relations to be truly stated by immigrants before their admission. There is some evidence also that ‘ ‘ Goldie, ’ ’ the daughter of Rachel, was admitted to the country as Henry’s daughter, and was thereafter treated by Henry Spondre as his own child. But there is no evidence of her formal adoption as such daughter pursuant to the laws of this country.

In Russia, Rumania and parts of Austria the marriage and divorce laws are different from those of this common-law country. Although the parties offered no evidence of the foreign law, yet for the purposes of this application I should take notice of such difference, or ka great wrong may be done to Rachel Spondre. The evidence offered on the hearing, as is most always the case in the applications of the poorer people, was extremely inartificial and untechnical. To apply rigid legal formulae to such evidence is not always conducive to justice. The presumptions' of the common law of evidence have scant application to the circumstances of the parties, and the interests of good government and decent society are not furthered by their application to cases not conceived of by the lex fori where such presumptions originate.

While this is only an application to set aside letters of administration, the decision really involves affirm

As surrogate I am always extremely loath to ignore an existing status on an indirect application like this before the court. It seems to me that factum of marriage alone should defeat this application, and that the surrogate should rest when an existing marriage is

I come at last to the merits of this application. Henry and Bachel Spondre first began their consortium in Bumania. They arrived in the port of New York as husband and wife, and as such husband and wife they lived here continuously until Henry Spondre died. Bachel swears she was divorced from Topelman by a rabbi and married by a rabbi. This evidence, I think, is not disproved. While a decree of divorce is undoubtedly the best evidence with us (Tice v. Reeves, 30 N. J. L. 314 ), yet no objection was taken to Bachel Spondre’s testimony that she was divorced from Topelman by a rabbi. Secondary evidence of a Jewish divorce, in the absence of all objection, is certainly sufficient priona facie on an application of the kind now here. In our law one may always testify to his own status, even when there is better evidence, e. g., one’s marriage, one’s birth, one’s age, one’s citizenship, domicile, nationality, or one’s blood relationship, and why not to a divorce, especially a Talmudical divorce, where no record is suggested to exist? With us, as shown elsewhere, a divorce from a former marriage may even be presumed to support a subsequent com

It may, I think, be presumed here from the facts conceded that Henry and Rachel contracted a common-law marriage on the high seas, or at the entrance to this port within the three-mile limit, or even in the harbor. A common-law marriage was certainly permissible in the instance of Henry and Rachel, especially after so great a lapse of time since the disappearance of Topelman, who, indeed, from the vague evidence given in, may never have been married at all to Rachel. Kresh v. Kresh, 58 Misc. Rep. 461 . Common-law marriages have always been recognized in this state, except from the period from January 1,1902, to January 1, 1908. Laws of 1901, chap. 339; Laws of 1907, chap. 742; Gall v. Gall, 114 N. Y. 109 ; Matter of Hinman, 147 App. Div. 452 ; affd., 206 N. Y. 653 ; O’Gara v. Eisenlohr, 38 id. 296; Bissell v. Bissell, 55 Barb. 325 ; Matter of Garner, 59 Misc. Rep. 116 , 119. Common-law marriages on the high seas within the three-mile limit are good marriages. Hynes v. McDermott, 91 N. Y. 451 . The necessary declarations of Henry and Rachel Spondre to the commissioners of immigration at the port of New York, of themselves constituted, at common law, a perfectly good contract of marriage per verba de praesenti. Their cohabitation and union is not denied and, indeed, is established beyond all peradventure.

It should not be overlooked that Topelman, the first consort of Rachel, or husband if husband he was, disappeared from the matrimonial scene many years ago

If we inquire what other evidence besides that denoted above there may be of such marriage, let me say that evidence, which I had always believed until lately was universally regarded as the highest kind of evidence known to the law of civilized peoples — I refer to reputation and cohabitation. People v. Humphrey, 7 Johns. 314 ; Hynes v. McDermott, 91 N. Y. 453 , where all the authorities are reviewed. Such proof is competent in all cases except proceedings for bigamy, divorce or damages for adultery. Morris v. Miller, 4 Burr. 2057; 1 Wm. Black. 632. So strong is this order of proof of marriage that even where it establishes a second marriage after a prior one a divorce from the first marriage will be presumed to support the second marriage. Blanchard v. Lambert, 43 Iowa, 228 ; 22 Am. Rep. 245 . All such decisions proceed from that established maxim of our law “ semper praesumitur pro matrimonio.” It was with this familiar principle fully in view that I said on the trial of this application: “ I shall require the alleged marriage to Topelman to be proved with the same strictness, as on an indictment for bigamy, before I will ignore, on this application, a subsequent marriage long established by reputation and cohabitation in this city. ’ ’

That Henry and Eachel Spondre were married under the old law of this state, their arrival in this port as husband and wife, followed by their long cohabitation

The only evidence against the marriage status of Rachel and Henry Spondre proceeds from the petitioner, Moses Spondre, who seeks to take the estate of his son Henry Spondre away from Rachel. It is a rule of practice, as contradistinguished from a rule of law, that courts of the common law will not act upon the

But we need not, I think, rest this matter on any mere refinement or disputable presumption of law. Rachel Spondre, herself called for petitioner, without objection as I have said, testified to her divorce from Topelman by a rabbi. Now divorces of those of the Jewish faith by their rabbis in Russia and Rumania, I will take notice for the purposes of this application, are valid, and the subsequent marriages of such divorced persons are consequently recognized as valid by the law of the locus contractus, to use our own technical phrase, or rather they are valid under the principle “ locus regit actum.” Status of marriage is ordinarily ■fixed by the law of the place of marriage. Rabbinical divorces being recognized in Rumania are valid in this jurisdiction. Leshinsky v. Leshinsky, 5 Misc. Rep. 495 ; Miller v. Miller, 70 id. 368; Weinberg v. State, 25 Wis. 370 (1870); Sokel v. People, 212 111. 238 (1904).

Although not so in this country, in Russia and Rumania the Jewish communities constitute a sort of imperium in imperio, as the state allows them to divorce themselves, according to their own laws, the Mosaic Code, embodied in the Pentateuch, and commented on or modified in the Talmud. The jurisprudence of so old and so great a people as the Jews is naturally not inferior to the jurisprudence of other cultivated races. One is apt to forget what Renan pointed out in France, that modern law has three great

It must not be forgotten that as among people of all other faiths the Hebrew community is not, in Europe, equalitarian. Some of them, in the terms of the European sociology, have long belonged to the higher nobility, which in European countries still counts for much, although more are of the class known as “ petite noblesse/’ in Europe a negligible rank, but most are classed as bourgeois or peasants, as is the case with European peoples of other faiths. Now, religious observances and laws are—and it is unfortunate that it is so — most strictly complied with in all races by the humbler classes of any faith. Henry and Rachel Spondre were evidently Jews of the lower order. She would doubtless feel obliged to resort to the rabbi for a divorce, and both would resort to the rabbi for their subsequent marriage, just as she testified was the fact. I have' already referred to the law regulating divorce in Rumania, as well as to our own common law of marriage. The Mosaic and Talmudical law of marriage and divorce can be found stated generally in such works as Amrams’ “ Jewish Law of Divorce ” and Henriques ’ “ Jewish Marriages and the English Law, ’ ’ and Year Book, American Rabbis, Volume XXV, and also in the “ Treatise on the Jewish Law of Marriage

The counsel for the petitioner, with a deft ingenuity, chooses to rest on some favorable presumptions of the common law, ignoring all the law I have referred to. He gave no proof of foreign or Jewish law, and no documentary proof of any kind. The certificate of Henry Spondre’s naturalization was produced, and it states that Henry Spondre was married to Rachel, and that “ Goldie ” was his own daughter. The trouble is not with the common-law presumptions counsel invokes, but with their irrelevancy to the state of facts disclosed. This playing back and forth in a litigation with logical see-saws I abhor, when it is not loyal to justice. On the facts shown the briefs throw little light which would aid me in reaching any just conclusion. When Rachel Spondre, in her simple testimony, swore to a divorce and marriage by a rabbi, her testimony at once challenged my attention. It introduced something of importance to her, and its validity ought fully to be considered or justice may fail this poor woman.

In regard to Rachel Spondre’s alleged false suggestion as to her daughter being the daughter of Henry Spondre, I am convinced it was not made in bad faith. Intention is the main element of a false suggestion. Henry Spondre evidently regarded Rachel’s daughter as his own daughter. It is so stated in his American certificate of naturalization, issued in the year 1912. The child certainly lived with him as his daughter, and he ultimately married her off, acting as her father. Henry evidently regarded “ Goldie ” as his daughter

In Matter of McDonough the Appellate Division did not sit as a court of review, but it exercised its original jurisdiction as trier of an issue of fact in this court and substituted its own findings of fact for mine. The Appellate Division, in the exercise of its original jurisdiction, as contradistinguished from its appellate jurisdiction, may lawfully substitute its own findings of fact for the surrogate’s. It does not then so act as a court of error or review, nor is it amenable to the universal common-law rule of appellate procedure, that findings of fact below can only be disturbed above for manifest error of law. When the Appellate Division so exercises its original jurisdiction its judgment is subject to no review whatever: Matter of Leland, 219 N. Y. 387 ; Matter of Martin, 80 Misc. Rep. 20 , 24; Code Civ. Pro. § 2763.

How far the judgment of the Appellate Division in Matter of McDonough also involved the denial of the

Application denied.