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Probate Court Comments on Marriage by Proxy

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, in October 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 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 [18 Misc.2d 702] Italy for the performance of the proxy marriage in question. These documents are in Italian, translated into English and properly authenticated.

On July 14, 1950 decedent executed a power of attorney before a notary public in Brooklyn, N. Y., by which he constituted and appointed his nephew, ‘to represent him in the celebration of a civil marriage in the Town of San Mauro La Bruca, Province of Salerno, Republic of Italy.

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. On cross-examination the witness testified that such a marriage cannot be annulled or abrogated after the death of a party thereto, citing as authority Articles 127 and 125 of the Civil Code, which are in evidence.

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. Petitioner’s objection to the question put to the widow, ‘What was the name of the man you married?’, and her answer shows the name of the decedent and all the other questions and answers which have to do with the celebration of the marriage between her and decedent do not constitute personal transactions and communications with the decedent prohibited under section 347, Civil Practice Act.

The construction is the one more consistent with the later decisions of this court. Indeed, a very learned judge thought that the law had become ‘well settled’ by the decision in a case. 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.

When the marriage in question was performed the decedent was a widower and Italia Zaini 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.

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, 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.

Proxy marriages without specific sanction have been recognized in Oklahoma, Kansas, New Mexico and District of Columbia. The only reported case found in this state involving a proxy marriage is in a case where the Justice of the Domestic Relations Court prefaced his decision thus: ‘This is a case without discovered precedent, in so far as it involves a marriage ceremony at which only one principal was personally present, and the other was represented by proxy.’ The marriage was performed in Washington, D. C. It was preceded by a marriage license procured by the wife. The statute did not require the presence of either party when the license was procured or when the marriage was performed. The husband, who was represented by proxy at the marriage, was charged with failure to support his wife and child. One of the issues was the validity of the marriage.

After stating the rule that the validity of the marriage was to be determined by the laws of the District of Columbia, and that those laws were complied with, the court held the marriage valid in New York. In unanimously affirming the order directing the appellant husband to support his wife and child, the Appellate Division, Second Department sub. nom. Fernandes v. Fernandes, said:

‘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 of the spouses 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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