305 N.Y. 486, 114 N.E.2d 4
In 1945 Fannie May died in New York.1 In 1951 her daughter Alice May Greenberg petitioned the Surrogate’s Court for letters of administration of her mother’s estate.2 Sam May filed an objection claiming to be the surviving husband entitled under section 118 of the Surrogate’s Court Act to administer the estate.3 Three of the couple’s children supported the objection and consented to letters issuing to their father, while two other daughters joined the petitioner in opposing it.4
The challenged marriage took place in 1913.5 For more than five years before the marriage Sam May had resided in Portage, Wisconsin.6 He came to New York in December 1912.7 Shortly afterward he and Fannie May, both adherents of the Jewish faith, traveled to Providence, Rhode Island, where on January 21, 1913 they entered into a ceremonial marriage performed by a Jewish rabbi at his home.8 The marriage certificate listed each party’s age as twenty-six and residence as New York, New York.9
Two weeks after the ceremony Sam May and Fannie May returned to Ulster County, New York.10 They lived together as husband and wife for thirty-two years until Fannie May’s death and had six children, including the petitioner.11 Throughout this period they maintained their residence in New York.12
At the time of the marriage Rhode Island statutes prohibited marriages between uncles and nieces but contained an express exception for marriages solemnized among Jews within the degrees of affinity or consanguinity permitted by their religion.13 The couple invoked this exception.14 New York’s Domestic Relations Law section 5 subdivision 3 declared marriages between uncles and nieces to be incestuous and void.15
The Surrogate’s Court granted letters of administration to the petitioner.16 The Appellate Division reversed on the law and remitted the matter to the Surrogate’s Court with directions to issue letters to Sam May.17 The petitioner and two of her sisters appealed as of right to the Court of Appeals.18
Whether the 1913 marriage between Sam May and Fannie May, valid under Rhode Island law, is to be given legal effect in New York for purposes of administering Fannie May’s estate?19
Subject to two exceptions the legality of a marriage between persons sui juris is to be determined by the law of the place where it is celebrated.20
Yes. The established facts show that Sam May resided in Wisconsin before coming to New York in December 1912.21 He and Fannie May, both adherents of the Jewish faith, traveled to Providence, Rhode Island, for a ceremonial marriage performed by a Jewish rabbi on January 21, 1913.22 Rhode Island law at that time contained an express exception permitting such marriages when solemnized among Jews within degrees allowed by their religion, and the couple invoked that exception.23 Two weeks later the couple returned to Ulster County, New York, where they lived as husband and wife for thirty-two years until Fannie May’s death in 1945 and raised six children including the petitioner.24
The Surrogate’s Court granted letters to the petitioner, but the Appellate Division reversed, holding the marriage valid in New York because the degree of consanguinity is not repugnant to natural law and the statute lacks express extraterritorial language.25
The marriage is therefore to be given legal effect in New York for purposes of administering the estate.26
Related opinions on this issue
Justice Desmond dissented, arguing that every state has the fundamental right to determine the marital status of its own citizens.27 New York exercised that right by declaring in section 5 of the Domestic Relations Law that a marriage between uncle and niece is incestuous, void, and criminal.28 He noted that such marriages have been condemned by public opinion for centuries and are void by statute in forty-seven states, with Rhode Island alone providing a narrow religious exception.29 The general rule recognizing marriages valid where solemnized does not apply when the marriage contravenes the express prohibitions of a statute of the domicile.30
Section 5 lists parent-child, brother-sister, uncle-niece, and aunt-nephew marriages as equally incestuous and void.31 Its policy, language, and meaning are beyond dispute, so the statute should be enforced by the courts rather than nullified by judicial construction.32
Whether New York Domestic Relations Law § 5 subdivision 3 applies extraterritorially to declare void the marriage of New York domiciliaries solemnized in Rhode Island?33
A statute declaring uncle-and-niece marriages incestuous and void does not by express terms regulate a marriage solemnized in another state where the marriage was legal unless the statute clearly expresses legislative intent to give it extraterritorial force.34
No. The established facts establish that the New York statute declares marriages between uncles and nieces incestuous and void and imposes fines or imprisonment, but contains no language extending its reach to marriages of domiciliaries solemnized abroad.35 The couple, both New York residents at the time of the ceremony, left the state solely to marry in Rhode Island where the religious exception rendered the marriage valid and then returned immediately to reside in Ulster County.36 Precedent confirms that absent express statutory language the scope of section 5 subdivision 3 should not be extended by judicial construction to marriages valid under the law of the place of celebration.37
Domestic Relations Law section 5 subdivision 3 therefore does not apply extraterritorially to void the Rhode Island marriage.38
Whether the marriage falls within either the positive-law exception or the natural-law exception to the general rule recognizing the validity of marriages valid where celebrated?39
The two exceptions to the place-of-celebration rule are marriages prohibited by positive law of the domicile and marriages involving polygamy or incest in a degree regarded generally as within the prohibition of natural law.40
No. The established facts demonstrate that New York’s Domestic Relations Law section 5 subdivision 3 supplies no positive-law prohibition with extraterritorial effect. It lacks any express statement that marriages of domiciliaries valid abroad shall be void in New York.41 As to natural law, the marriage was between persons of the Jewish faith.42 Their kinship was not in the direct ascending or descending line.43 It was solemnized according to Jewish ritual in a state whose legislature expressly declared such marriages good and valid in law.44
The degree of consanguinity therefore does not offend the public sense of morality to a degree regarded generally with abhorrence.45
The marriage does not fall within either exception and remains valid under New York law.46