Francis, J.c.c. (temporarily assigned).
Plaintiff, claiming to be the widow of Joseph Frank, Sr., deceased, seeks a judgment declaring the existence of her dower right in premises at 1371 Springfield Avenue, Irvington, N.J. In order to succeed, she must show, by the greater weight of the evidence, two basic facts; first, that she is the lawful widow of the decedent, and second, that the decedent, as her husband, or another to his use, was seized of an estate of inheritance at some time during coverture. (R.S. 3:37-1.)
There is no dispute that plaintiff and decedent were married by a ceremonial marriage on September 14, 1938. Nor
is it disputed that thereafter they lived together as husband and wife until some time in September, 1947, at which time a separation took place. Then they lived apart until Frank's death, November, 1950.
On cross-examination, the plaintiff admitted that in 1926 she had entered into a common law marriage with one Albert Minichella. A daughter was born of this marriage and she is now 23 years of age. Very few details of the marriage were disclosed beyond Mrs. Frank's admission. No testimony was offered as to the state in which the marriage contract was entered into, nor as to whether, if it was not New Jersey, such state recognized common law marriages. The terms of the agreement were not inquired into, so the record does not show whether the parties agreed to become man and wife, to live together as such, and to hold each other out to the world as husband and wife. However, it does appear that they lived together in Newark, N.J., that Minichello's mother lived with them, and that Mrs. Frank was friendly with and visited his relatives. Their place of residence was in Newark until December, 1928, when a separation took place because Minichello was running around with other women.
While the evidence is rather obscure, the parties, and particularly the plaintiff, seem to take it for granted that a valid common law marriage existed. Consequently, the court has accepted their conclusion and will deal with the action on the theory presented at the trial, namely, that the second ceremonial marriage of plaintiff must be considered valid because a presumption of Minichella's death existed at the time it was contracted.
According to Mrs. Frank, she never saw Minichella nor heard from him after their separation in December, 1928. She inquired of his parents and sister about him and his whereabouts, and they in turn made the same inquiry of her. But no word from him or about him ever came to her. Her daughter testified that she does not remember her father and has never seen him within her recollection. Mrs. Frank remained friendly with Minichella's sister until some time
after her marriage with decedent, and ceased seeing her only upon his request.
Frank was informed of plaintiff's earlier marital status before their marriage. Thereafter, her daughter lived with them and he permitted her to change her name to his by the usual court procedure.
Thus it appears that Minichella has not been seen or heard from for about 23 years now and had not been heard from or seen for about 10 years prior to this ceremonial marriage. These facts create a statutory presumption that he is dead and that he was dead on September 14, 1938, at the time of the ceremonial marriage. (R.S. 3:42-1.) With respect to the validity of a second marriage under such circumstances, Herr on Marriage, Divorce and Separation has this to say:
"The presumption of the continuance of life fades gradually with the expiration of time until, at the end of seven years of absence of a party, the presumption of death arises. If a second marriage is contracted after a spouse has been absent for seven years, the marriage is considered as valid if there is no rebutting proof of the continued life of the absentee." (§ 46, p. 58.)
In Burkhardt v. Burkhardt , 63 N.J. Eq. 479 (Ch. 1902), a decree of nullity was sought on an allegation that the wife was married and undivorced at the time of her union with complainant. The evidence disclosed that the wife had married one Hoffman and lived with him for about a year. He disappeared in 1890 and the marriage in question took ...