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Matter of Estate of Frank Silverman

Decided: March 13, 1967.

IN THE MATTER OF THE ESTATE OF FRANK SILVERMAN, DECEASED


Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[94 NJSuper Page 191] In addition to the dispute as to the allowance of counsel fees hereinafter noted, these consolidated appeals involve the challenge by decedent's brother, plaintiff Nathan Silverman (Nathan), of the trial court's ruling sustaining

the validity of the marriage of Frank Silverman (Frank) and Hannah G. Silverman (Hannah) and denying the relief sought by the first count of Nathan's complaint, the removal of Hannah as administratrix of the decedent's estate.

Nathan does not appeal from the trial court's adverse determinations on the second and third counts of his complaint seeking respectively the establishment of an alleged lost will of decedent and the enforcement of a trust agreement purportedly entered into between Nathan as beneficiary and the decedent Frank as trustee.

Nathan contends that the marriage was invalid by reason of the provisions of L. 1939, c. 227, now N.J.S.A. 37:1-10, which abolished common law marriages as of December 31, 1939 and provided that no marriage contracted on and after that date

"* * * shall be valid unless the contracting parties shall have obtained a marriage license as required by section 37:1-2 of this Title, and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by section 37:1-13 of this Title to solemnize marriages; and failure in any case to comply with both pre-requisites aforesaid, which shall always be construed as mandatory and not merely directory, shall render the purported marriage absolutely void."

It is undisputed that Hannah and Frank obtained a license as directed by R.S. 37:1-2; the license was issued on January 2, 1963 by the licensing officer of the City of Long Branch. It is also undisputed that Hannah and Frank were married on January 5, 1963 by a person authorized by N.J.S.A. 37:1-13 to solemnize marriages, the mayor of Deal.

Nathan contends, however, that despite this literal compliance with the requirements of R.S. 37:1-2 and N.J.S.A. 37:1-13, the marriage is invalid under N.J.S.A. 37:1-10 because the license was obtained in Long Branch on the basis of application signed by Frank and Hannah reciting that she was a resident of Long Branch whereas in fact she resided in Wall Township. Nathan argues that as a result, the license

was not a license "duly issued" as called for by N.J.S.A. 37:1-10 since R.S. 37:1-3 provides:

"The licensing officer shall issue the license which shall be obtained:

a. In the municipality of this state in which the female party to the proposed marriage resides; or

b. In the municipality in which the male party resides, if the female party is a ...


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