In re the Estate of Benjamin , 41 A.D.2d 771 ( 1973 )

In a proceeding to procure letters of administration, the appeals are (1) from a decree of the Surrogate’s Court, Kings County, dated June 29, 1972 and made after a non-jury trial, which (a) adjudged that petitioner, Lucille Benjamin, is the decedent’s widow and that no valid common-law marriage existed between the decedent and appellant Olga Benjamin, (b) removed appellant Marie Vogelstein as administratrix and (c) appointed the Public Administrator as administrator; and (2) from so much of an order of the same court, dated November 13, 1972, as, after granting appellants’ motion to change parts of the transcribed minutes of the trial, but only as to certain parts, denied the motion as to all other parts. Decree affirmed and order affirmed insofar as appealed from, with costs to petitioner-respondent, payable out of the estate. No opinion. Rabin, P. J., Hopkins, Munder and Martuscello, JJ., concur. Shapiro, J., concurs in the affirmance as to the order, but otherwise dissents and votes to reverse the decree and to adjudge that a valid common-law marriage was contracted between the decedent and Olga Benjamin in 1927, which marriage continued in force and effect until his death. Even were the testimony of the witnesses discounted, the documentary evidence adduced clearly established, beyond peradventure of doubt, that a valid common-law marriage was contracted between the decedent and Olga Benjamin in 1927. Their daughter’s birth and baptismal records, acknowledged by the decedent, as well as the statement by him in his army records, clearly established the marriage.