238 Mass. 561 | Mass. | 1921
This is a petition for a widow’s allowance, filed in the Probate Court for the County of Suffolk. The petition was ordered dismissed, and the case is before this- court on appeal by the petitioner. In the Probate Court a commissioner was appointed to take evidence; and upon the request of the appellant the probate judge filed his report of materia! facts found by him thereon, as required by St. 1919, c. 274, § 3. The evidence is not reported.
The testator in the summer of 1889 went to Dakota on business for his father; he then went to Illinois, without the purpose of obtaining a divorce, acquired a domicil in that State, and lived in Chicago until 1894 or 1895. On November 27, 1891, he filed a libel for divorce in Cook County, Illinois, against his wife alleging desertion. The laws of Illinois permit the granting of a divorce for desertion for two years instead of three as in Massachusetts. The libel represents “ that the said Ella M. Parmelee . . . on, to wit, the fall of the year 1889, wilfully deserted and absented herself from your orator without any reasonable cause for the space of two years.” “ All the technical requirements of the Illinois law were complied with by the libellant,” but the wife never received actual notice of the divorce proceedings during their continuance, and the notice sent to her by mail in accordance with Illinois law was addressed to her at “ 15 Chester Park St., Boston,” where she and her husband had never lived, her husband having reason to believe that she lived in New York, as was the fact, and making no effort to ascertain her address. A divorce was granted on June 7, 1892, after a hearing upon depositions and the testimony of the testator. In these circumstances and by reason of the domicil of the testator within the State of Illinois, the court of Illinois had jurisdiction to grant the divorce which would be valid in the State of Illinois until impeached and revoked by the
The court of Illinois not having matrimonial jurisdiction and not having jurisdiction of both parties, could not make a decree which would fall within the full faith and credit clause of the Constitution of the United States; Atherton v. Atherton, 181 U. S. 155; Haddock v. Haddock, 201 U. S. 562; Thompson v. Thompson, 226 U. S. 551; but other States if they see fit, on principles of comity may recognize a foreign decree of divorce when such decree has no extraterritorial force by reason of art. 4 of the Constitution of the United^ States. Haddock v. Haddock, supra. Perkins v. Perkins, 225 Mass. 82.
Although the wife never received legal notice of the divorce proceedings in Illinois, a rumor reached her in New York, where she had resided since the separation in 1888 and apparently had acquired a domicil, that her husband was seeking a divorce in Illinois. “If the date is correct, it would appear that the proceedings were still pending.” In 1892 she wrote to Chicago, and ascertained the fact of the decree and the charge contained in the evidence that she had deserted her husband because "she was infatuated with a doctor.” She consulted counsel, who told her “ it would cost a great deal of money for her to go to Chicago . . . to bring it up again; and he said the law freed me from Mr. Parmelee, and I considered myself free.” She continued to live in New York, and in 1893 married there one George S. Allen, a resident of Boston but a Canadian by birth; they lived together in New York until 1895, when they returned to Boston. In 1899 Allen left the petitioner and went to the Yukon, where, so far as appears, he is still living; and eight years ago his address was Whitehorse, Yukon. There is an express finding of fact that the petitioner married Allen on the strength of the Illinois divorce.
The judge ruled that “ although the Illinois court had no jurisdiction of the parties in that it acquired no jurisdiction of the libellee . . . and that though the libellant may have imposed on the Illinois court in his presentment of facts relative to the causes
Decree accordingly.