1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2.5.3. Williams v. Williams

Supreme Court, Monroe County

11 N.Y.S.2d 611; 1939 N.Y. Misc. LEXIS 1767

March 31, 1939


LAPHAM, Justice. This is an action to annul a marriage for fraud predicated upon the misrepresentation and concealment by the defendant of a physical condition which made him incapable of begetting children. An answer was interposed personally by the defendant but this was withdrawn by his counsel when testimony to establish the right of the plaintiff to a decree was given before me at Special Term.

The plaintiff and the defendant were married in April 1932 and there has been no issue of the marriage. Before the marriage the parties questioned each other about the health and the power of each to bear and beget children. The plaintiff told the defendant that she was perfectly normal and wanted children and the defendant replied that there was no reason why they should not have a child. At this time the defendant was suffering from a physical deformity of his sexual organs which was linked to a disturbance of the pituitary gland. The defendant had known of this condition at least in its exterior manifestation for years. The disorder deprived the defendant of the power to reproduce although it did not interfere with normal sexual intercourse. The defendant was silent about this physical condition of which he had been aware since his youth.

A few years passed and no children came. In June 1937 the plaintiff and the defendant consulted a doctor together. The doctor found the wife normal and healthy in every respect but found that the defendant was incapable of begetting children. The doctor advised an operation and treatments in an effort to effect a cure. The plaintiff was willing to live with the defendant if the operation could correct the defendant's physical disability. Neither the operation nor the treatment was successful and on November 4, 1937, the doctor informed the defendant that his condition was incurable. As soon as the plaintiff learned of the futility of expecting any change in her husband's condition she left him and since that time has not cohabited with him. She testified that she would not have consented to the marriage if she had known of the defendant's physical defects.

Neither statute nor decision has ventured to define the fraud sufficient to support a decree of annulment. The criterion of such fraud has, however, been tersely expressed by Judge Crouch in general terms in Shonfeld v. Shonfeld, 260 N.Y. 477, at pages 479 and 480, 184 N.E. 60, at page 61:

'The statute is silent as to what constitutes fraud. The Legislature perhaps adopted the traditional attitude of equity, which has ever refused to define, lest the craft of man evade the definition. Lawley v. Hooper, 3 Atk. 278. The court is left free to meet each case as it arises and to apply to the defendant's conduct the immemorial test of fair and conscientious dealing. But fraud alone is of no avail unless followed by the statutory consequence that consent to the marriage was given by reason of it. At this point one encounters the interpretation placed upon the statute by this court in Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L.R.A. 92, 95 Am.St.Rep. 609. Not every fraud by reason of which the particular individual may have given consent to the marriage is an adequate basis for annulment. On the other hand, the fraud need not necessarily concern what is commonly called the essentials of the marriage relation -- the rights and duties connected with cohabitation and consortium attached by  [**4]  law to the marital status. Di Lorenzo v. Di Lorenzo, supra; Beard v. Beard, 238 N.Y. 599, 144 N.E. 908; Domschke v. Domschke, 138 App.Div. 454, 122 N.Y.S. 892.

'Any fraud is adequate which is 'material, to that degree that, had it not been practiced, the party deceived would not have consented to the marriage' (Di Lorenzo v. Di Lorenzo, supra, 174 N.Y. at page 471, 67 N.E. 63, 64) [63 L.R.A. 92, 95 Am.St.Rep. 609], and is 'of such a nature as to deceive an ordinarily prudent person.' [Di Lorenzo v. Di Lorenzo, 174 N.Y. at page 474], 67 N.E. 63, 65 [63 L.R.A. 92, 95 Am.St.Rep. 609].'

In deference to this general principle the courts have annulled marriages where there has been either an affirmative misrepresentation of freedom from disease or a suppression and concealment of the existence of a disease or of an unhealthy physical condition that was particularly grave and serious. Svenson v. Svenson, 178 N.Y. 54, 70 N.E. 120 (suppression of existence of venereal disease); Lapides v. Lapides, 224 App.Div. 257, 229 N.Y.S. 745, reversed, 254 N.Y. 73, 171 N.E. 911, on ground that the evidence did not support allegations of fraud (concealment of Epilepsy); O'Connell v. O'Connell,  [**5]  201 App.Div. 338, 194 N.Y.S. 265 (representation that defendant was not addicted to drugs); Jacobson v. Jacobson, 207 App.Div. 238, 202 N.Y.S. 96 (representation of freedom from disease); Sleicher v. Sleicher, 251 N.Y. 366, 373, 167 N.E. 501 (concealment of mental disorder); Leventhal v. Liberman, 262 N.Y. 209, 211, 186 N.E. 675, 88 A.L.R. 782 (representation of good health and concealment of tuberculosis and drug habit); Sobol v. Sobol, 88 Misc. 277, 150 N.Y.S. 248 (concealment of tuberculosis); Yelin v. Yelin, 142 Misc. 533, 255 N.Y.S. 708 (tuberculosis); Meyer v. Meyer, 49 How.Prac. 311 (concealment of uterine disorder).

Judged in the light of these principles and adjudications the representation and silence of the defendant on his physical condition struck at the very nerve and root of the marriage contract. Every woman perhaps who is about to be married longs for children of the marriage but here the plaintiff revealed that her longing was the moving cause behind her consent to the marriage. Over and beyond this hope and this instinctive longing, however, stands the public interest which attaches to every contract of marriage and which demands that the marriage shall be fruitful. Sterility can be a public as well as a personal tragedy.

In Mirizio v. Mirizio, 242 N.Y. 74, 150 N.E. 605, 44 A.L.R. 714, Chief Judge Hiscock emphasized the extent of the public interest in the birth of children and said, 242 N.Y. at page 81, 150 N.E. at page 607, 44 A.L.R. 714: 'The mere fact that the law provides that physical incapacity for sexual relationship shall be ground for annulling a marriage is of itself a sufficient indication of the public policy that such relationship shall exist with the result and for the purpose of begetting offspring.'

The same considerations of public policy lay at the heart of the decision in Coppo v. Coppo, 163 Misc. 249, 297 N.Y.S. 744. In that case the defendant promised to have children if the plaintiff would marry her. In reliance on this promise the plaintiff married the defendant. For a time after the marriage the defendant insisted on the use of contraceptives and finally told the plaintiff that she did not intend to have any children and that at the time of making such promises she had no intention of fulfilling them. On these facts the Court granted an annulment of the marriage. And in Kronman v. Kronman, 247 App.Div. 186, 286 N.Y.S. 627, the Court clearly intimated that the fraudulent concealment by the defendant that she was suffering from a disease which made her sterile would be adequate ground for an annulment if the plaintiff would not have given his consent if he had known of the existence of such disease.

The conduct of the defendant here did not meet 'the immemorial test of fair and conscientious dealing.' Shonfeld v. Shonfeld, supra. The failure of the defendant to reveal his physical condition was a violation of the duty of frank and open disclosure which the relationship of the trust and confidence existing between persons contemplating marriage laid upon him. Smith v. Smith, 112 Misc. 371, 184 N.Y.S. 134; Weill v. Weill, 104 Misc. 561, 172 N.Y.S. 589; Truiano v. Truiano, 121 Misc. 635, 201 N.Y.S. 573; Costello v. Costello, 155 Misc. 28, 279 N.Y.S. 303.

In Smith v. Smith, supra, the duty of revealing the existence of facts that might influence the decision of either party to enter into an irrevocable contract of marriage was outlined by the Court in these words, 112 Misc. at page 374, 184 N.Y.S. at page 136:

'Marriage being a mutual and voluntary compact, based on mutual regard and affection, to live together as husband and wife as long as both shall live, a confidential relationship exists between those contemplating marriage that demands frankness and truthfulness as to all facts that would affect the decision of either party. Persons who have agreed to marry owe an affirmative duty to inform each other of all facts material to their contemplated marriage, not alone because such facts may affect the decision of the contracting parties, but the state and community has an interest by reason of the property rights involved and the possible issue of the union. And if either party is unfitted by age, physical condition, mental incapacity, or legal disability from being joined in lawful wedlock, that party should not remain silent; there is a clear duty to speak, as such facts are of the very essence of the contract of conjugal union. Silence implies marriageability.

'A confidential relationship exists between persons who contract to marry, and, occupying such positions toward each other, concealment of material facts may be fraud. The suppression of the truth, when there is a duty to speak, is a fraud. Smith, Frauds, § 9. There is a legal and moral obligation to communicate or disclose facts material to the contemplated marriage.'

In the present case the duty of making a full and complete disclosure of vital facts was created not alone by the relationship between the parties. The duty came alive on account of the plaintiff's inquiry about the defendant's ability to beget children. A candid and complete revelation of the defendant's defect was not only invited but it was demanded by this inquiry.

There was more, however, than a concealment by the defendant of a fact that was vital to the marriage contract. The defendant affirmatively represented that there was no reason why he and the plaintiff should not have a child. The failure to say explicitly that the defendant had no physical disability does not destroy the fraudulent character of the representation. The law does not stand here upon niceties of word and phrasing. It condemns as fraudulent any statement that creates a false impression by virtue of an intentional suppression. Costello v. Costello, 155 Misc. 28, 279 N.Y.S. 303.

There is no evidence in the record that the defendant knew that he was unable to beget children as a result of his physical defect but a frank revelation of his condition would have led almost certainly to a physical examination which would have uncovered the extent and effect of his disability. If the defendant had told the plaintiff what he already knew she might have been content to give her consent to the marriage without insisting on a physical examination or she might have refused her consent. In any event the defendant could not deprive the plaintiff of information that would be vital and even decisive in deciding whether to marry or not. The failure of the defendant to disclose his physical infirmity took away from the plaintiff the opportunity of making an intelligent decision. It lulled her to sleep and built a deception out of which her consent to the marriage was given.

The cases of Wendel v. Wendel, 30 App.Div. 447, 52 N.Y.S. 72, and McGill v. McGill, 179 App.Div. 343, 166 N.Y.S. 397, affirmed 226 N.Y. 673, 123 N.E. 877, illustrate by contrast circumstances where a decree of annulment was denied. In each case the decision to marry was reached after a disclosure of all the relevant and material facts likely to influence the giving or refusal of such consent. In the Wendel case the defendant had had her ovaries removed by an operation and expressed to the plaintiff doubt of her capacity to conceive but the plaintiff persisted in his desire to marry her in the face of this knowledge. In the McGill case the plaintiff sought an annulment on the ground that the defendant had concealed the fact that she was suffering from epilepsy. A friend had informed the plaintiff of the defendant's infirmity and she herself had invited the fullest inquiry into her condition by consent to a physical examination.

It is as clear that the misrepresentation of the defendant was calculated to deceive a person of ordinary prudence as that the plaintiff would not have given her consent to the marriage if she had known of the defendant's physical disability. The presentation touched a subject which the defendant alone knew and which before the marriage could not be confirmed or disproved by the plaintiff. What the court said of the misrepresentation of the defendant in Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 473, 67 N.E. 63, 65, 63 L.R.A. 92, 95 Am.St.Rep. 609, that the plaintiff was the father of her illegitimate child may with equal cogency be applied to the representation of the defendant in the present case. 'The plaintiff had a right to rely upon the defendant's statement of a fact, the truth of which was known to her and unknown to him, and he was under no obligation to verify a statement to the truth of which she had pledged herself. It was a gross fraud, and, upon reason, as upon authority, I think it afforded a sufficient ground for a decree annulling the marriage contract.'

The cohabitation of the plaintiff with the defendant before the discovery of the fraud does not defeat her right to an annulment. It is only cohabitation by the injured party with full knowledge of the fraud that brings the prohibition of the statute into force. Civil Practice Act, § 1139; Aufiero v. Aufiero, 222 App.Div. 479, 226 N.Y.S. 611; Licato v. Licato, 164 Misc. 105, 298 N.Y.S. 768; Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474.

In Rubman v. Rubman, supra, the Court said, 140 Misc. at page 670, 251 N.Y.S. at page 487: 'Where there is fraud going to the essence of the marriage contract, it will not be validated by cohabitation, unless at the time the innocent party knows of the fraud, when such intercourse is said to be with marital intent and the contract is then regarded as affirmed or ratified and therewith consummated. There can be no consummation and marital status unless and until the innocent party knows of the fraud, and the parties thereafter have intercourse, or cohabit with marital intent.'

The evidence produced before me shows conclusively that the plaintiff ceased to live with the defendant after she had learned that he was sterile and that his sterility was incurable. Some hint of the truth might have come to the plaintiff from the physical appearance of the defendant during the marriage relationship long before consultation with the doctor was sought. She testified, however, that in her ignorance she did not know that the defendant was abnormal in any respect. I have no reason to doubt her honesty or her good faith. The situation must be judged in the light of the ordinary rules of human conduct of a young woman of moral sensibilities. So considered, the failure of the plaintiff to discover the defendant's infirmity before the consultation with the doctor should not deprive her of the relief which the other proven facts justify.

The bonds of marriage once assumed are not to be broken lightly but the sanctity of the marriage must rest on a foundation of mutual trust and confidence and not upon a deception which as here is all pervasive. An annulment of this marriage will not trench upon any vested interests or punish anyone except the offending party. There are no children of the marriage and no troublesome questions of support. Libman v. Libman, 102 Misc. 443, 447, 169 N.Y.S. 900; Lewine v. Lewine, 170 Misc. 120, 123, 9 N.Y.S.2d 869.

There is evidence in the record that the physical disability of the defendant affects his whole behavior. To compel the plaintiff to continue to live with the defendant in marriage and to relinquish all her hopes of children would be to perpetuate a tragedy which cannot be wholly resolved but which may be undone in part. The plaintiff is still a young woman and while in the full vigor of her youth should be given a chance of shaping her life anew.

This conclusion does not come into conflict with the doctrine enunciated by the line of authorities which hold that mere sterility is not such physical incapacity as will justify an annulment of the marriage. Lapides v. Lapides, 254 N.Y. 73, 171 N.E. 911; Kronman v. Kronman, 247 App.Div. 186, 286 N.Y.S. 627;  Schroter v. Schroter, 56 Misc. 69, 106 N.Y.S. 22.

The present action is predicated on fraud and not on physical incapacity.

The plaintiff is entitled to an interlocutory decree annulling the marriage with the defendant.

The presumption of impotency has not been overcome and a decree of nullity will be advised.