176 Mass. 92 | Mass. | 1900
This is an appeal from the decree of the Probate Court appointing Annie Andrews administratrix of the estate of Charles S. Andrews. The appellant is the first wife of the deceased. The appellee married him later in good faith, after he had obtained a decree of divorce in South Dakota. The questions are whether the divorce is valid in this State, or whether, if it is invalid, the appellant, on the ground of connivance and acquiescence, is estopped to deny its validity. Charles S. Andrews went to South Dakota for the purpose of getting the divorce, and intended to return to Massachusetts as soon as he had done so. Subject to this intention it is found that he intended to become a resident of South Dakota for the purpose of getting a divorce, and to do all that was needful to make him such a resident. The statute of South Dakota forbids a divorce “ unless the plaintiff has, in good faith, been a resident of the Territory ninety days next preceding the commencement of the action.” Compiled Laws of Territory of Dakota, § 2578. St. South Dakota, 1890, c. 105, § 1. Andrews lived in South Dakota ninety days ; and the Dakota court found in favor of its own jurisdiction, substantially in the words of the section just quoted, and granted the divorce for a cause which would not authorize a divorce by the laws of this Commonwealth.
The consensus of English speaking courts founds jurisdiction of divorce on domicil. It may be that a State might substitute for domicil, by statute, if it chose, simple bodily presence within its borders for a certain number of days.. It may be, at least under the Constitution of the United States, that a divorce granted under such a statute between parties, both of whom were before the court, would be entitled to respect here, not
The finding of the single justice clearly means that the deceased did not get a domicil in South Dakota. He meant to stay there ninety days, and such further time, perhaps, as was necessary to get his divorce, and then he meant to come back to Massachusetts. It is true that he meant to do all that was needful to get a divorce, but he meant it because he was mistaken as to what was needful. In other words, he only meant to do what he supposed to be needful, and that was not enough. Whether if he had known what was needful he would have meant that and would have done it, is a speculation. In fact he did not mean or do it, on the facts so far stated. It is clear that the finding of the South Dakota court in favor of its own jurisdiction upon an ex parte hearing would not be conclusive, but that the facts would be open to examination here. Adams v. Adams, 154 Mass. 290, 294, and cases cited. Hanover v. Turner, 14 Mass. 227, 230, 231. Thompson v. Whitman, 18 Wall. 457. Hoffman v. Hoffman, 46 N. Y. 30. Gregory v. Gregory, 78 Maine, 187. Watkins v. Watkins, 125 Ind. 163.
But the appellant appeared in the divorce suit and denied the alleged residence of the deceased, although afterwards, upon receiving a certain sum of money, she directed her counsel to withdraw. There is a plain difference between a case in which a respondent has not submitted herself to the power of the court and one in which she has done so. In the former, a foreign State within whose territory she is domiciled may decline to allow her rights to be affected by the decree, whatever the record may allege. In the latter, there is stronger ground
Supposing the State decisions just mentioned to be correct as to the effect of the decree between the parties, the general consequence would be that it was effective as to the rest of the world. As a general rule it would be inconvenient to admit that parties who were divorced as between themselves were not divorced as against others. Kinnier v. Kinnier, and Waldo v. Waldo, ubi supra. Adams v. Adams, 154 Mass. 290, 295. But a further distinction is taken. The world at large has no interest in the divorce, and therefore may be bound by it; but it is suggested that the State of the domicil has an interest, and that it cannot be concluded by a mere false recital in the record, because the foreign court did not even pretend to jurisdiction over that State. People v. Dawell, 25 Mich. 247, 257. In People v. Dawell, this proposition was applied in favor of the State of the domicil as a prosecutor, and at an earlier date it was applied by this court in favor of the State as a legislator. Chase v. Chase, 6 Gray, 157, 161.
It will be borne in mind that, on the facts before us, the case is not one in which the Legislature of South Dakota has undertaken to allow the grant of a divorce. It is one in which the court of that State has been deceived, and in which it would have refused to act and would have had no right to act, had it known the facts. In such a case as this, the State of the domicil, if it
The Commonwealth having intervened by legislation, the appellant gets the benefit of it irrespective of any merits of her own. The possibility of a distinction such as was sanctioned by In re Ellis' estate, 55 Minn. 401, upholding the divorce as between the parties and so far as concerns property rights, but treating it as void as against the State and for the purposes of the criminal law, is done away with by the act. It is settled that in a case within the statute the divorce is to be treated here as void for all purposes. Chase v. Chase, 6 Gray, 157, 160. It is settled that there is no estoppel even as against the party instituting the foreign proceedings. Smith v. Smith, 13 Gray, 209, 210. If the appellant’s conduct amounted to connivance, as found, so that she could not have maintained a libel for adultery on the ground of the second marriage, that does not go far enough to constitute an estoppel. Loud v. Loud, 129
