
    Joseph Glielmi and Others, Plaintiffs, v. Antonio Glielmi and Others, Defendants.
    (Supreme Court, Onondaga Trial Term,
    June, 1911.)
    Curtesy — Estates which support curtesy.
    Where a married man of whose marriage children were born capable of inheriting their estate is sentenced to imprisonment for life, and thereafter his wife marries again, and he is subsequently-pardoned, and his wife afterward dies seized of real estate which "she acquired after her second marriage, the first husband is not entitled to curtesy therein.
    Action for partition.
    Hancock, Hogan & Hancock, for plaintiffs.
    Gregg Brothers & Rulison, for defendant Antonio Glielmi.
   Andrews, J.

Antonio and Lucrezia Glielmi were husband and wife. Of this marriage children were born capable of inheriting their parents’ estate. In June, 1891, Antonio was convicted of murder in the second degree in a court of this State and sentenced to imprisonment in a State prison for life. In September of the same year Lucrezia married one Vincenzo Doloir who, so far as appears, is still living. Dunn v. Travis, 56 App. Div. 317. There were no children of this marriage. In 1895 Antonio’s sentence of life imprisonment was commuted to fifteen years and fie was discharged from prison in 1900, when the commuted sentence expired. Lucrezia died intestate in 1910. At that time she was seized and possessed of four pieces of real estate, situated in the city of Syracuse. She obtained title thereto after her marriage to Doloir.

This action is brought to partition such real estate. Antonio was made a party and he answers,. claiming an interest therein as tenant by the curtesy. The only question involved is as to this claim.

Section 511 of the Penal Law provides that “A person sentenced to imprisonment for' life is .thereafter deemed civilly dead.” Séction 6 of the Domestic Eelations Law provides that “A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless (2) such former husband or wife has been finally sentenced to imprisonment for life.” Section 58 of the same law provides that “A pardon granted to a person sentenced to imprisonment for life within this state does not restore that person to the rights of a previous marriage.”

The marriage, therefore, of Lucrezia and Doloir was not void. Whether the life imprisonment and the civil death of Antonio was equivalent to an absolute divorce in favor of Lucrezia need not be decided. The most that can possibly be claimed by Antonio is that his marriage was only suspended or in abeyance and that the marriage with Doloir was voidable upon his release and upon action being taken by one of the three parties to the same. Otherwise both marriages would be in force at the same time and to this extent polygamy would be sanctioned by law.” ‘Stokes v. Stokes, 198 N. Y. 301. As no such action was taken the Doloir marriage remained in force down to the death of Lucrezia; and, even assuming that her marriage with Antonio was merely in abeyance, she did not become seized of this property during coverture. This necessary prerequisite to an estate by the curtesy in the. husband, therefore, did not exist.

Judgment for plaintiffs.  