10/11/22, 12:36 AM Matter of Simms, 26 N.Y.

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Matter of Simms
Court of Appeals of the State of New York
Feb 19, 1970

257 N.E.2d 627 (N.Y. 1970) Copy Citations

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Argued January 5, 1970

164 Decided February 19, 1970 *164

Appeal from the Appellate Division of the Supreme Court in the Second
Judicial Department, EDWARD S. SILVER, S.

Raymon M. Loew and John J. Halleron, Jr. for appellant.

165 Herbert Schrank, Sidney Segelstein and David B. Bernfeld for respondents. *165

BERGAN, J.

Petitioner Eva Jankowitz is a niece by the half blood of decedent Albert I.

Simms. Her father and Simms were half brothers. The question in the case is
whether an antenuptial agreement between them, followed by a religious
solemnization of marriage which conformed with the canons of the Jewish
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faith but which has been held void in a matrimonial action
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lifetime
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all cases anddecedent,
statutes...remains an enforceable contract. By it the JX
decedent undertook to bequeath $25,000 to petitioner.
Opinion Summaries Case details
The matrimonial judgment declaring the marriage void was based on section
5 (subd. 3) of the Domestic Relations Law. This provides that a marriage
166 between "An uncle and niece" is *166 incestuous and void. It does not
expressly include an uncle and niece by the half blood.

This omission would not ordinarily be troublesome since it would be

assumed that the term would include relationship by the half blood were it
not for the fact that the preceding subdivision 2 of the section, in dealing
with marriages between brothers and sisters, spells out both the full and the
half blood relationship, i.e., "A brother and sister of either the whole or the
half blood".

In this context it seems reasonable to think that if the Legislature intended

to prohibit marriages between uncles, nieces, aunts and nephews whose
parents were related to the contracting party only by the half blood, it would
have used similar language, and its failure to do so in immediate context in
dealing with a more remote relationship than brother and sister suggests
that it did not intend to put this limited class within the interdiction.

This question was examined closely in 1921 in Audley v. Audley ( 196 App. Div.
103). In a direct action between the parties for an annulment it was held that
a marriage between uncle and niece by the half blood was void. In some part
the rationale followed in the opinion by Justice LAUGHLIN was based on
the assumption that it would be technically inaccurate to use the term "half
blood" in relation to uncle and niece; and that this was a probable reason the
Legislature did not use the term dealing with this type of marriage.

Still the term is one of common usage and meaning where the parent of the
nephew or niece is not a full brother or sister of the contracting party. (See,
e.g., the use of the term by Chief Judge LEWIS in Matter of May, 305 N.Y.
486, 488, i.e., "his niece by the half blood".) If the Legislature had intended
that its interdiction on this type of marriage should extend down to the
rather more remote relationship of half blood between uncle and niece, it
could have made suitable provision. Its failure to do so in the light of its
explicit language relating to brothers and sisters suggests it may not have
intended to carry the interdiction this far.
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TheallActing
Search cases Surrogate in deciding that the contract was good in this present
and statutes... JX
167 case seemed to be of opinion that the statute, *167 in its penal effect at least,
Opinion Summaries
did not make Case
this marriage details In any case there is enough doubt
incestuous.
about the language in which the statute is cast to negative its penal
consequence in this type of marriage.

But since the marriage has been declared void and has been annulled in a
direct action between the spouses ( Simms v. Simms, 31 Misc.2d 882, affd. 16
A.D.2d 806) it is unnecessary to rest on the question of statutory
construction. Decision may turn on whether the antenuptial contract when
made was valid; and whether the performance of a religious ceremonial
marriage and subsequent cohabitation as husband and wife met its
conditions.

That the contract itself is valid is not open to doubt. It did not prescribe
where the marriage was to be solemnized. It was not only valid by Jewish
law, but it would be valid at least in some jurisdictions outside of New York
where it could have been performed and hence the contract was not
interdicted as an unlawful agreement ( Matter of May, 305 N.Y. 486, supra;
Matter of Saffer, 39 Misc.2d 691, affd. 20 A.D.2d 849; Weisberg v. Weisberg, 112
App. Div. 231).

Assuming, then, a valid contract when made, it remains to see whether there
was a sufficient performance of its terms by the petitioner to require
decedent's estate to pay the amount contracted to be paid. In three places in
the agreement the parties referred to the solemnization of the marriage, and
in one place it was expressly stated that the agreement became effective
"only in the event that the contemplated marriage between the parties shall
be solemnized" and if it "shall not be solemnized" the agreement should be
void.

The parties undoubtedly believed the marriage which had been solemnized
by a Rabbi between them according to Jewish law was valid. Each had stated
in the application for the marriage certificate that no legal impediment
existed. They lived together as husband and wife for a substantial part of a
year when the decedent, apparently contemplating another marriage,
brought the action to annul his marriage with petitioner.

On this record the Referee and the Surrogate found that petitioner had
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performed the essential conditions of the agreement. Sign
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168 consistent
Search all caseswith the weight of evidence. Except *168 for the amount of money
and statutes... JX
involved and the length of time they lived together as husband and wife, the
Opinion
present caseSummaries
is exactly theCase
samedetails
as Matter of Saffer ( supra) in which the
parties are described as uncle and niece and which involved the validity of
an antenuptial agreement.

Moreover, to require the estate to pay the contracted amount offends no

public policy of the State. The judgment of annulment itself, in the action
which the decedent instituted, required him to pay $50 a week for
petitioner's support on the basis of the relationship created by the void
marriage (Domestic Relations Law, § 236). The enforcement of the
antenuptial agreement merely continues the obligation thus fixed, for a
reasonable time in the future.

The order should be reversed and the decree of the Surrogate reinstated,
with costs in this court and in the Appellate Division to all parties appearing
separately and filing separate briefs payable out of the estate.

SCILEPPI, J. (dissenting).

I dissent and vote to affirm for the reasons stated in the opinion at the
Appellate Division. I would merely add that unlike the case primarily relied
upon by the appellant ( Matter of Saffer, 39 Misc.2d 691, affd. 20 A.D.2d 849),
the parties to the antenuptial agreement in the instant case expressly
provided that "if such contemplated marriage shall not be solemnized * * *
this agreement shall become wholly null and void".

The marriage having been previously declared a nullity ( Simms v. Simms, 31

Misc.2d 882, affd. 16 A.D.2d 806), the sole question presented was whether
the parties contemplated the solemnization of a lawful marriage or one that
was merely religiously sanctioned. It is my opinion that the Appellate
Division correctly determined the intention of the parties to condition the
agreement on a valid marriage. Accordingly, the marriage having been
declared a nullity, the condition precedent was not met by the religious
ceremony since there was nothing to solemnize.

Chief Judge FULD and Judges BURKE, JASEN and GIBSON concur with
Judge BERGAN; Judge SCILEPPI dissents and votes to affirm in a separate
opinion in which Judge BRIETEL concurs. Download Treatment
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Order reversed, etc. *169
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169
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