In Re Toth Estate , 50 Mich. App. 150 ( 1973 )

50 Mich. App. 150 (1973) 212 N.W.2d 812

In re TOTH ESTATE
TOTH
v.
TOTH

Docket No. 16139.

Michigan Court of Appeals.

Decided October 30, 1973.

Bolle, Gase, Gilleran & Williams, for William Toth.

Mihelich, Carlson & Purdo (by Robert W. Carlson), for Anna Toth.

Before: T.M. BURNS, P.J., and V.J. BRENNAN and VAN VALKENBURG,^[*] JJ.

PER CURIAM.

Joseph Toth, a resident of Roseville, Michigan and Anna Ganczer, a citizen of Hungary, were married in Hungary in August of 1964. They returned to Michigan and lived in Macomb County until Joseph Toth died on July 6, 1970. Anna filed petitions for a widow's election and allowance in the Macomb County Probate Court. That court denied her petitions, but the circuit court granted her relief. At the same time, the executor of the estate filed an action in the Macomb County Circuit Court, alleging that Anna was not the widow of Joseph in that their marriage was invalid because they were counsins of the first degree. MCLA 551.3; MSA 25.3 and MSA 551.4; MSA 25.4. This circuit court action was consolidated with the appeal from the probate court, and the trial court granted relief in favor of Anna. Leave to appeal was denied in the case which began in the Macomb County Probate Court. The claim of appeal from the circuit court decision is based upon the same grounds which have previously been found to be devoid of merit.

The plaintiff argues that Anna and Joseph, cousins of the first degree, were not lawfully husband and wife pursuant to MCLA 551.3; MSA 25.3 and MSA 551.4; MSA 25.4. However, an examination of the various provisions of the Hungarian People's Republic Law of 1952, particularly Chapter 2, Paragraph 8, reveals that marriage between first-degree cousins is not prohibited. Also, the district court in Pest County, Budapest, Hungarian People's Republic, has recently found the marriage between Anna and Joseph valid pursuant to the Hungarian laws. Michigan follows the well-established general rule that a marriage valid where it is contracted is valid everywhere. Hutchins v Kimmell, 31 Mich 126, 131 (1875).

The case of In re Miller's Estate, 239 Mich 455; 214 NW 428 (1927), is squarely on point and controls the decision in this case. The Supreme Court pointed out that our prohibitions against marriage between first-degree cousins applies only to marriages solemnized in this state. Thus, a marriage between two cousins of the first degree, both residents of Michigan, who specifically went to Kentucky to evade the Michigan prohibitions, was found to be valid despite the Michigan laws prohibiting such a marriage. The Hungarian People's Republic obviously recognizes the validity of marriages between cousins of the first degree. Therefore, pursuant to the decision in In re Miller's Estate, supra, the marriage between Anna Ganczer and Joseph Toth was valid.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.