183 A.D. 753 | N.Y. App. Div. | 1918
This is a proceeding for the probate of the will of Pasquale Caltabellotta. The appellant filed her petition in the Surrogate’s Court in which she sought to be made a party to the proceeding on the ground that she, instead of the proponent, is the lawful widow of the deceased. The proponent made an application to dismiss the appellant’s petition and the court took the proofs of the respective parties bearing upon the application and made the order in favor of the proponent which is here under review.
There is involved on this appeal the question of the validity of a judgment of absolute divorce granted by the Circuit Court of the county of Cook in the State of Illinois at the October term, 1903, in the city of Chicago, in favor of Pasquale Caltabellotta, the decedent, against Giovanna Caltabellotta, the appellant, upon the ground of desertion and abandonment. At the time of the commencement of the action in which such judgment was rendered the decedent was a resident of Chicago and the appellant was a resident of Swissvale, in the State of Pennsylvania. The appellant was not served with the summons in the action within the State of Illinois, she did not appear in the action and there is no evidence that she was ever
It appears that the decedent and the appellant, each being about nineteen years of age, were married by a priest at Trabia, in the province of Palermo, Sicily, Italy, in the year 1883, and lived there together about five years. Four children were bom to them in Italy, all of whom are dead except Antonino, who now goes by the name of Anthony and is one of the parties to the probate proceeding. The decedent and appellant were married again by the civil authorities at Trabia in 1889. In about that year decedent left Italy and came to live in the United States. He lived three years in New Orleans, La., and in 1892 went to Chicago where he resided until about the year 1904. In 1904 he came to Buffalo where he resided until his death which occurred June 11, 1917. He was a barber. He left real and personal estate in Buffalo. By his will he gave the use of all his property to the proponent and the remainder to his six children, share and share alike.
The appellant remained in Italy until about the year 1902 when she came to the United States with her son Anthony and took up her residence at Swissvale in the State of Pennsylvania, where she and he have resided ever ¿ince.
On March 2, 1896, decedent married the proponent in Chicago. It appears that the proponent did not know at that time that the decedent had been married. As already stated, the decree of divorce was obtained in October, 1903. In May, 1904, the decedent and proponent were again married in Chicago. :
The decedent left him surviving the proponent, who claims to be his lawful widow, and the appellant, who makes a like claim, and as his only heirs at law and next of kin six children, five by the proponent and one by the appellant.
An action for divorce, either a vinculo matrimoni, or a mensa et thoro, is an action in personam proper, that is to say, an
At the time our government came into being divorces were granted in England by acts of Parliament. That practice was adopted in this country. It has been said that the right to grant divorces was a legislative right, proceeding from the right of a sovereign State to determine the status of its citizens. An interesting discussion in this connection will be found in the opinion of the Supreme Court of the United States in Maynard v. Hill (125 U. S. 190). In the exercise of the right to dissolve the marriage relation - by legislative enactment no notice whatever was given except that resulting from the enactment itself. Whether originally the exercise of a legislative or judicial function, the right to grant divorces, as now recognized in the law,- is generally exercised by the courts under legislative enactments.
The State of New York early announced and has steadfastly maintained its policy that the marriage relation and its preservation were highly important to the welfare of the people. In that view its Legislature provided that there should be only one ground upon which one of the parties to a marriage should be granted an absolute divorce from the other and that is the adultery of the latter. It has been the policy of the State of New York not to encourage, but to discourage, the granting of divorces. Whatever the advent of woman suffrage and the tendency in the direction of socialism may accomplish to undermine this policy of our State, the policy still prevails under the sanction of our statutes. The State of New York has been unwilling, so far, to recognize, by comity, the binding force of such judgments as that under consideration pronounced for a cause not regarded of sufficient gravity to justify the dissolution” of the marriage relation.
It is said, however, that New York has only enforced this policy in favor of its own citizens and that our courts would turn a deaf ear to a citizen of a sister State applying to them for the benefit of such policy. I am not willing to concede
The discussion contained in the foregoing has, we think, ample support in the opinion of the Supreme Court of the United States in Haddock v. Haddock (201 U. S. 562). The Haddock case was decided by a bare majority of the members of the court and the dissenting opinions indicate that the minority members of the court regarded the decision as overruling the decision of the court in Atherton v. Atherton (181 U. S. 155). This was not intended by the court. In the Atherton case emphasis was laid on the existence of the matrimonial domicile. Mrs. Atherton had gone from the State of New York as the bride of Mr. Atherton and their matrimonial domicile was clearly established in the State of Kentucky. While that condition of things existed and in the State of Kentucky they separated. The matrimonial domicile still continued in the State of Kentucky and by reason thereof Mrs. Atherton was a citizen of the State of Kentucky. While she was such citizen, the acts of cruelty upon the part of Mr. Atherton toward her of which she complained took place, and the courts of Kentucky were open to her for redress. That being the situation, she voluntarily departed from that State. Under the doctrine of the matrimonial domicile she still was a citizen and resident of that State and subject to the jurisdiction of its courts exercised under the laws of the State. It was upon that theory that the Supreme Court of the United States held that the judgment of divorce obtained by him against her in the courts of the State of Kentucky was a judgment in personam which bound them both by its
So that we have here the fact that the decedent and the appellant were legally married, that the marriage was consummated and that they lived together and had children. The marriage once proven to have existed is presumed to exist until the contrary appears. In the court below the proponent was allowed to prove the dissolution of that marriage relation by the judgment of the Circuit Court of Cook county in the State of Illinois. That ruling was erroneous because the appellant was a stranger to that judgment and it proved nothing as against her. Upon the proofs in this record the appellant must be regarded as the lawful widow of the decedent.
* In the case at bar no great hardship will attend the conclusion that we have reached, because there is a will, and, if that will is probated, the only interest that the appellant will have in the property of the decedent will be her dower right in the real estate. Irrespective of this consideration, the administration of the law as we conceive it to be, must necessarily be accompanied at times with unfortunate consequences. Notwithstanding this, if the principle which has been established in New York is the result of the best thought of the judiciary and the Legislature, the inconveniences and disturbing elements that may result are not too great a price to pay in order to maintain the principle. ; ■
It follows from the foregoing that the order of the Surrogate’s Court should be reversed, the application of the appellant granted, and the proceeding remitted to the Surrogate’s Court, there to be acted upon in accordance with this opinion. ■■ ¡
All concurred; Lambert, J., not sitting.
Order reversed, with ten dollars costs and disbursements, and proceeding remitted to the Surrogate’s Court to be there acted upon in accordance with the opinion.