14 Mills Surr. 108 | N.Y. Sur. Ct. | 1915
The petitioner, Oscar Clark Miller, alleges that he is a legatee named in the second paragraph of the codicil to the last will and testament of Sarah Akin, deceased; that he is entitled to the entire income of the trust fund mentioned in the said codicil; and he makes this application under section 2689, Code of Civil Procedure, to obtain an order directing the trustees to pay the said income to him. The paragraph referred to reads as follows:
“ I give and bequeath to my trustees the sum of twenty-five thousand dollars ($25,000), to have and to hold the same for the following uses and purposes: To invest the same in such securities as are directed in my said will in respect to' such sums as are given in said will to my trustees in trust; to collect the rents, income and profits thereof, and in their discretion and from time to time to pay the whole of the net income arising therefrom either to- my nephew, Oscar Clark Miller, or to his*110 wife, Julia Miller, or a portion of such net income to one, and the remaining portion, to the other, during- the term of> the life of the said Oscar Clark Miller, and upon and after his. death to divide and pay over the said principal sum in equal shares to and among his. surviving children and the issue of such of them who may then be dead, such issue taking the share which their parent would have taken if he or she had survived the said Oscar Miller.”
The petitioner -alleges that on the 23d of December, 1913, he obtained a decree of absolute divorce from his wife, Julia A.- Miller, and he contends that after the date of such decree she was not entitled to any part of the income from the trust fund, that he then became absolutely entitled to. the said income, and -that the trustees were divested of the discretionary power of payment given to- them by the testatrix. Attached- to the petition is an exemplified copy of the decree of divorce granted by the Second Judicial District Court of the State of Nevada, in and for the county of Washoe, in the case of Oscar Clark Miller against Julia A. Miller.
The petitioner alleges that he resides- in the borough óf Brooklyn, city of New York, and that Julia A. Miller resides at Atlantic City, in the State of New Jersey.
The petitioner’s claim to the entire income is based upon the effect of the decree of divorce granted to him by the District Court of Nevada. If that decree is invalid, or1 if the courts- of this State refuse to recognize it, there can be no question of the right of the trustees to pay the income of the trust fund to either Oscar Clark Miller or. Julia A. Miller, or to pay- s-uch portion of the income to either, as they in their discretion may deem advisable.
The courts of this State are not prevented by section 1 of article IY of the Federal Constitution from inquiring into the jurisdiction of a court of a sister State to render a judgment upon which either of the parties relies as the basis of his- right
The petitioner, therefore, is not entitled to an order directing the trustees to pay to him any part of the income from the trust fund.
Application denied.