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Matter of Estate of Clarence Emmons

Decided: May 27, 1966.

IN THE MATTER OF THE ESTATE OF CLARENCE EMMONS, DECEASED


Conford, Kilkenny and Leonard.

Per Curiam

Virginia Fussner Emmons appeals from an order of the Atlantic County Court, Probate Division, setting aside her appointment as administratrix of the estate of Clarence Emmons. The estate is of slight monetary value and may even be insolvent but the issue involved is important to the parties and the legal question is novel.

Virginia married decedent on a Sunday, November 15, 1964. He died intestate on April 27, 1965. The trial judge

ruled that Virginia's marriage to decedent was not valid and for that reason she was not entitled to letters of administration as the surviving spouse. The rationale of this conclusion was that her divorce from her previous husband, Raymond Fussner, did not become final until Monday, November 16, 1964, when the Clerk of the Superior Court of New Jersey entered a final judgment of divorce in her favor. The judgment nisi of divorce had been entered on August 14, 1964.

The only question presented on this appeal is whether the marriage of a person is valid if entered into more than three months after entry of a judgment nisi of divorce in his favor but prior to the date upon which the final judgment of divorce is formally entered by the clerk of the court. We answer that question in the affirmative under the facts and circumstances herein.

N.J.S. 2A:34-19 provides:

" A judgment nisi shall become final after the expiration of 3 months from the entry thereof, unless an appeal or a proceeding for review has been taken and is pending, or unless the court before the expiration of such period for sufficient cause, upon its own motion, or upon the application of any party, whether interested or not, otherwise orders." (Emphasis added)

None of the statutory contingencies precluding the finality of the divorce occurred in the instant case, so that Virginia's judgment nisi of divorce, entered on August 14, 1964, became final at the close of Saturday, November 14, 1964. Thus, by a literal reading of the statute, Virginia's marriage to Raymond Fussner terminated at midnight preceding Sunday, November 15, 1964, and she was free to marry at any time on Sunday or thereafter.

Significantly, N.J.S. 2A:34-19 does not require entry of a formal final judgment to make the judgment nisi final but declares that it shall become final after the expiration of 3 months from entry thereof, absent any of the contingencies specified. The predecessor statute, R.S. 2:50-30, required additionally that "at the expiration of three months, upon

application to the court by petitioner or counterclaimant, the final and absolute decree shall be entered, unless prior to that ...


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