
    In the Matter of the Estate of Jacob Benjamin, Deceased. Lucille Benjamin, Respondent; Olga Benjamin et al., Appellants.
    Argued February 15, 1974;
    decided March 29, 1974.
    
      
      Marie Vogelstein, administratrix, for herself and other appellants.
    I. The common-law marriage of decedent and appellant Olga Benjamin was established “ beyond peradventure of doubt ”. (Gall v. Gall, 114 N. Y. 109; Tracy v. Frey, 95 App. Div. 579; Matter of Seymour, 113 Misc. 421; Ellis v. Kelsey, 118 Misc. 763, 208 App. Div. 774, 214 App. Div. 784, 241 N. Y. 374; Matter of Moncrief, 235 N. Y. 390; Matter of Leslie, 175 App. Div. 108; Dodge v. Campbell, 135 Misc. 644, 229 App. Div. 534, 255 N. Y. 622; Nani v. Nani, 120 Misc. 249; Matter of Wight, 110 Misc. 480; Herz v. Herz, 34 Misc. 125.) II. Direct proof of the agreement to marry was not required. (Collins v. Collins, 80 N. Y. 1; Clayton v. Wardell, 4 N. Y. 230; Rodman v. Rodman, 140 Misc. 642; Matter of Brush, 25 App. Div. 610.) III. The validity of the common-law marriage between decedent and appellant Olga Benjamin has not been overcome. (Clayton v. Wardell, 4 N. Y. 230; O’Gara v. Eisenlohr, 38 N. Y. 296; Matter of Vaughan, 305 N. Y. 584; Matter of Callahan, 142 Misc. 28, 236 App. Div. 814, 262 N. Y. 524; Matter of Smith, 136 Misc. 863; Boyd v. Boyd, 252 N. Y. 422; Matter of Biersack, 96 Misc. 161, 179 App. Div. 916; Matter of Cofer, 119 Misc. 587, 206 App. Div. 657, 237 N. Y. 512; Hynes v. McDermott, 91 N. Y. 451; Gall v. Gall, 114 N. Y. 109.) IV. Respondent has failed to rebut the presumption of the legitimacy of the issue of the said common-law marriage. (Caujolle v. Ferrié, 23 N. Y. 90; Matter of Meehan, 150 App. Div. 681.)
    
      Joseph Slavin for respondent.
    The declaration that Lucille Benjamin was the widow of Jacob Benjamin was properly made. (Matter of Callahan, 142 Misc. 28; Matter of Hahn v. Falce, 56 Misc 2d 427; Rudyk v. Rudyk, 198 Misc. 260.)
   Jasen, J.

Jacob Benjamin died intestate on March 20, 1971. Rival widows claimed the estate, valued at $17,000, and sought letters of administration. Olga Benjamin claimed by virtue of a common-law marriage in 1927; Lucille Benjamin by virtue of a ceremonial marriage in 1956. After a trial in Surrogate’s Court, Kings County, it was adjudged, inter alia, that Lucille was the widow of the decedent and that Olga and the decedent had not contracted a valid common-law marriage. The Appellate Division affirmed, one Justice dissenting, and Olga, the decedent’s alleged common-law wife, appeals as of right.

At the trial, there was evidence that Olga began living with Jacob in 1927 and that the two were regarded by their neighbors as husband and wife. In 1929, a daughter, Elouise, was born to them. Both parents acknowledged her in the birth certificate and in the baptismal certificate. In the birth certificate, Olga also indicated that four other children had been born to her. Jacob, it appears, continued to acknowledge Elouise as his daughter until his death. Elouise testified that her mother returned to Trinidad in 1938 or 1939 and never saw Jacob after that. Jacob’s army discharge certificate, dated October, 1944, indicated that he was married. Olga, 80 years old at the time of the trial and purportedly still resident in Trinidad, did not testify.

With respect to Lucille’s claim, there was evidence that in 1956 she and Jacob entered into a ceremonial marriage in New York which was duly recorded. In his affidavit submitted with the application for a marriage license, Jacob stated that he had never been married before.

After trial, the Surrogate held “as a matter of law that the proof fails to establish a valid common-law marriage between the decedent and Olga Benjamin on or about 1927-1933.” The court also found that because the presumption of validity of the ceremonial marriage was so strong, absent direct proof of the agreement per v.erba de praesenti to take one another as husband and wife, the burden of proving the common-law marriage was insuperable.

In our view, the Surrogate’s holding as to the burden of proof to establish a common-law marriage was erroneous. Accordingly, there should be a reversal.

Although common-law marriages were abolished in New York on April 29,1933 (L. 1933, ch. 606), common-law marriages contracted by competent parties prior to that date are recognized and remain valid. (People v. Massaro, 288 N. Y. 211, 215; 15 N. Y. Jur. [rev.], Domestic Relations, § 37, p. 286.) Once a valid common-law marriage is entered into, a subsequent denial of the marriage or a change of mind by one of the parties does not invalidate the marriage. (Dodge v. Campbell, 135 Misc. 644, affd. 229 App. Div. 534, affd. 255 N. Y. 622.)

It is axiomatic that the one seeking to establish the common-law marriage has the burden of proving it. (Matter of Wells, 276 App. Div. 822, affd. 301 N. Y. 796.) But the agreement essential to a common-law marriage need not be proved in any particular way. Direct or circumstantial evidence may suffice. (Matter of Haffner, 254 N. Y. 238, 242; Matter of Pratt, 233 App. Div. 200, 203, app. dsmd. 258 N. Y. 577.) Documentary evidence, cohabitation and reputation as husband and wife, acknowledgment, declarations, conduct and the like are all probative. (Gall v. Gall, 114 N. Y. 109; 15 N. Y. Jur. [rev.], Domestic Relations, § 78, p. 326.) Cohabitation and reputation, or holding out to the world as man and wife, we have held, constitute evidence of a marital agreement and raise a presumption of common-law marriage. (Gall v. Gall, supra; 15 N. Y. Jur. [rev.], Domestic Relations, §§ 66, 79.) The presumption is rebuttable, however, and is said to yield to the stronger presumption of validity attaching to a subsequent ceremonial marriage. (Chamberlain v. Chamberlain, 71 N. Y. 423; Clayton v. Wardell, 4 N. Y. 230.)

Turning to the record before us, the Surrogate found circumstantial proof of cohabitation and reputation from the birth of Elouise in 1929 to Jacob and Olga. It was held, however, that direct proof of the marital agreement was necessary to overcome the strong presumption of validity attaching to the second or ceremonial marriage. We believe the Surrogate’s holding emphasizes unduly the role of direct proof in establishing a common-law marriage. The agreement to live as man and wife is what need be shown and it need not be proved in any particular way. (Matter of Haffner, supra.) Moreover, the Surrogate’s holding appears to overlook the documentary evidence which, if credited, reinforces the evidence of cohabitation and reputation and furnishes strong proof of a common-law marriage between the decedent and Olga Benjamin. Jacob acknowledged the child, Elouise, as his daughter in both the birth and baptismal records. His 1944 army discharge certificate recites that he was then married. Although not admissible to prove the alleged common-law marriage, this latter document is indicative of Jacob’s continuing attitude about his relationship with Olga (cf. Zy v. Zy, 13 N. Y. S. 2d 415, 420421) and is corroborative of what the evidence of cohabitation and reputation, the birth and baptismal records tend to show — the making of an agreement in 1927 to live as man and wife.

For the reasons stated, the order of the Appellate Division should be reversed, without costs, and .the matter remitted to the Surrogate’s Court, Kangs County, for further proceedings consistent with this opinion.

Gabrielli, J. (dissenting).

The issue dividing this court is whether an alleged common-law'marriage, without proof of any agreement to become married but based solely on circumstantial evidence, can overcome the strong presumption of the validity of a ceremonial marriage. In the circumstances of this case, I think not.

We are in agreement that the proponent of a common-law marriage has the burden of establishing such a relationship (Matter of Wells, 276 App. Div. 822, affd. 301 N. Y. 796), but it should be further understood that such a proponent also has the burden of overcoming the presumption of the validity of the ceremonial marriage entered into with the respondent in 1956, which thrived and continued until the husband’s death on March 20,1971 (Shepherd v. Shepherd, 47 N. Y. S. 2d 947, affd. 267 App. Div. 917). Whatever personal relationship existed between the deceased and Olga Benjamin (the alleged common-law wife), it was terminated in 1938 or 1939 when she returned to Trinidad. She never returned to live with the deceased and, in fact, never saw him again. Neither did she return to testify in this proceeding. It is well to here point out that when the deceased married the respondent Lucille Benjamin, the deceased swore in his affidavit for his marriage license that he had never been previously married.

Much is made of the fact that Olga and the deceased were the parents, of Elouise, but it should be added that the other four, children born to her were not the children of the deceased. Whatever the strength of the presumption, of the legitimacy as to Elouise, it is negated, if not overcome by the subsequent marriage (Chamberlain v. Chamberlain, 71 N. Y. 423, 427; Matter of Fuller, 9 A D 2d 565; Shepherd v. Shepherd, 47 N. Y. S. 2d 947, affd. 267 App. Div. 917, supra). In Chamberlain the evidence showed that Benjamin Chamberlain commenced living with Effie Porter in 1804 and remained living with her for 2, .3 or 4 years. A son was born to them, named Simon Chamberlain. They subsequently separated and Benjamin resumed living with a former mistress. He later married Sally Keyes, brought her to his home and lived with her for some 35 years until his death. It was established at trial that Chamberlain had referred to Effie as his wife, treated her as such, and following their separation still referred to her as his wife. Their relatives and friends in the community where they lived recognized them as husband and wife and that Simon was their son. Under these facts the court recognized that such proof is sufficient to make out a prima facie case for the devolution of property, but the proof of a common-law marriage is not conclusive and was overcome by adequate evidence. This court reversed a holding that Effie was the common-law wife of Chamberlain. In Shepherd (supra) the court emphasized that “ the burden is upon the plaintiff [Alleged common-law wife] of establishing by strong, satisfactory and-conclusive evidence the validity of her first marriage and overcoming the strong presumption that the second [ceremonial] marriage is valid ” (p. 948). The proof in this ease does not rise to this level, there being little probative pre-1933 evidence of an agreement between the parties to establish a true marital relationship, as distinguished from evidence merely to indicate that they were the parents of Elouise. In fact, we are left here with an affirmed finding made by the Surrogate that the only credible evidence of cohabitation and reputation was the birth of Elouise and her relationship to her father over the years. This, of course, is not sufficient to show an agreement to marry. The attempted discharge of appellant’s burden of proof is weakened by the birth to her of four other children and, if we are to entertain the presumption of their legitimacy, then she would be required to overcome the obstacle of showing there was no impediment to her claimed marriage to the deceased.

In passing it should be noted that any evidence relating to events and occurrences after April 29, 1933, when common-law marriages were abolished in New York, may not be used to establish the claimed relationship after that date (15 N. Y. Jur. [rev.], § 37, p. 287). In sum, appellant has not successfully overcome the obstacles created by the burden of proof thrust upon her.

The order should be affirmed.

Chief Judge Breitel and Judges Jones, Waohtleb and Stevens concur with Judge Jasen; Judge Gtabrielli dissents and votes to affirm in a separate opinion; Judge Rabin taking no part.

Order reversed, etc. 
      
      . The Appellate Division also affirmed an order granting in part and denying in part the appellants’ motion to correct the trial minutes for the purposes of appeal. Appellants apparently have abandoned that aspect of the controversy on their appeal to this court.
     