Opinion
Submitted May 9, 1932
Decided July 19, 1932
Appeal from the Supreme Court, Appellate Division, First Department.
Frederick Hemley and Jesse Hemley for appellant.
J. Charles Weschler for respondents.
Letters of administration were issued to Graham Murtha, a brother of deceased. Kathryn Lynch Murtha filed a petition in the Surrogate's Court, praying that the letters be revoked upon the ground that they were issued because of a false suggestion of a material fact, i.e., that deceased did not leave a widow. Petitioner alleged that she is the surviving widow.
The issue was tried and the Surrogate found upon sufficient evidence that the petitioner and deceased had entered into a common-law marriage. The Appellate Division reversed the findings made by the Surrogate and denied the petition.
We are required to examine this evidence. ( Matter of Edge Ho Holding Corp., 256 N.Y. 374, 381; Matter of Flagler, 248 N.Y. 415. )
After such examination, we are satisfied that the Surrogate, who saw the witnesses and heard the testimony, was justified in making the decision embodied in the decree.
The question is purely one of fact and it would serve no useful purpose to review the evidence.
The order of the Appellate Division should be reversed and the decree of the Surrogate's Court affirmed, with costs in this court and in the Appellate Division payable out of the estate.
POUND, Ch. J., CRANE, KELLOGG, HUBBS and CROUCH, JJ., concur; LEHMAN and O'BRIEN, JJ., dissent.
Ordered accordingly.