In re the Estate of Maloy , 272 A.D.2d 1084 ( 1947 )

Appeal from a decree of the Surrogate’s Court of Albany County which adjudged that petitioner-respondent, Jane Maloy, was the common-law wife of Arthur G. Maloy, deceased. Decedent died intestate January 19, 1946. The proof clearly indicates that he and the petitioner-respondent had lived together, ostensibly as man and wife, from some time in November or December, 1929, until about April 1, 1945. From the early part of the year 1930 until the latter part of March, 1945, they lived together at premises known as 262 South Main, Avenue, Albany, N. Y. There was clear and credible evidence of cohabitation and conduct over a long period of time sufficient to support the conclusion that the parties agreed in prcssenti, some time in November or December, 1929, to become husband and wife, and thereafter lived as such. The fact that petitioner-respondent used the name of Jane L. Kirby in many business transactions thereafter did not destroy the force of that evidence. The Surrogate found that the parties became married November 10, 1929. There is no evidence to support a finding as to a specific date of marriage. The decree should be modified in that respect by a finding that the marriage took place some time during the months of November or December, 1929, and as so modified affirmed, with costs to all parties filing briefs. Motion by appellants for order appointing a referee to take further testimony on this appeal pursuant to section 309 of the Surrogate’s Court Act, denied, without costs. Decree modified by finding that the common-law marriage between decedent and respondent herein took place some time during the months of November or December, 1929, and as so modified, affirmed, with costs to all parties filing briefs, payable out of the estate. Hill, P. J., Heffernan and Foster, JJ., concur; Brewster and Bussell, JJ., dissent. [See 273 App. Div. 1084.]