192 Misc. 243 | N.Y. Sur. Ct. | 1948
In April, 1899, respondent married Peder Pedersen in Norway. After their arrival in the United States they established their residence in New York State. On March 5,. 1931, he instituted an action against her for a divorce in the District Court of Tulsa County, State of Oklahoma. Respondent, who resided in this State, was not personally served with
The decedent died on June 18, 1947, leaving a last will and testament which has been probated. He was survived by two sons, one of whom was named and qualified as executor. Respondent, not content with the provisions made for her in testator’s will, in which he describes her.as “ my wife ”, “ my said wife ”, has filed a notice of election under section 18 of the Decedent Estate Law. Testator’s sons seek a decree declaring the same void upon the ground that the respondent is not his widow. They assert that her marriage to their father was void because she then had a husband living and, in anticipation of her reliance upon the Oklahoma divorce decree, additionally allege that her husband, the plaintiff in the action, went to Oklahoma solely for the purpose of procuring a divorce, that he was not a bona fide resident of that State, that the divorce was fraudulently procured and that the court lacked jurisdiction to adjudicate his marital status. Whether or'not the respondent is the widow of the decedent depends upon the validity of the foreign decree and the recognition here required to be given thereto.
The Oklahoma decree is prima facie entitled to full faith and credit and favored by a presumption of validity that persists until the basis of jurisdiction has been held to be nonexistent. (Matter of Holmes, 291 N. Y. 261, 273; Pereira v. Pereira, 272 App. Div. 281, 287.) A decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree had no jurisdiction, even when the record of the proceeding in that court purports to show jurisdiction. (Williams v. North Carolina, 325 U. S. 226, 229; Matter of Holmes, supra, p. 273; Pereira v. Pereira, supra.) Under our system of law, judicial power to grant a divorce —