173 N.Y. 503 | NY | 1903
This action was brought by the plaintiff as the widow of William H. Starbuck, deceased, to recover dower in the real estate of which he died seized.
The decedent and the plaintiff were married in the commonwealth of Massachusetts on the 14th day of October, 1857, he being a resident of this state where he continued to reside until his death, which occurred on the 29th day of March, 1896. In the year 1868 the plaintiff left her husband's residence and returned to her parents' home in Massachusetts, taking her daughter with her, where she resided until after his death. She then removed to this state and brought this action. Upon the trial the defendants offered in *506 evidence an exemplified record of a decree of divorce obtained by the plaintiff from her husband in the state of Massachusetts on the 4th day of May, 1874, upon the ground of extreme cruelty. The papers in that action were served upon the decedent personally in this state, but he did not appear in the action either personally or by attorney and did not submit himself to the jurisdiction of the Massachusetts court. This decree was excluded from evidence upon the objection of the plaintiff's attorney, and exceptions were taken to such exclusion by the defendants. After the divorce Starbuck contracted a marriage with the defendant Matilda Eliza Starbuck in the state of Pennsylvania, and the minor defendants are children of that union. The real estate in which the plaintiff seeks to recover dower is all situated in this state, and was acquired by Starbuck after the divorce.
We are of the opinion that the Massachusetts decree was competent and that the defendants had the right to have it received in evidence. True, the plaintiff could not avail herself of a void decree, which she had procured to be entered, any more than she could of her own declarations, but it is different with the defendants. They have the right to avail themselves of the declarations, acts and decrees obtained by their opponent, and the principle is well established that, where a party has procured a judgment or decree to be entered, submitting himself to the jurisdiction of the court, he cannot thereafter be heard to question the jurisdiction of the court which entered the judgment or decree. The decree, therefore, if it had been received in evidence, would have operated to defeat her claim that she is now the widow of the decedent and entitled to dower in the real estate acquired by him after the decree. We have recently had under consideration a similar question in Matter ofSwales (
In Matter of Morrisson, (52 Hun, 102), the decedent's personal estate was claimed by the legal representatives of her deceased husband, Henry Feyh. He had previously obtained a divorce from her in the state of Ohio while she was domiciled in this state. It was claimed on behalf of the personal representatives of Henry Feyh that the decree of the Ohio court was void in this state. It was held that they were not entitled to the estate. VAN BRUNT, P.J., in delivering the opinion of the court, said: "Henry Feyh, having invoked the jurisdiction of the court of Ohio and submitted himself thereto, cannot now be heard to question such jurisdiction. And the claimants here occupy precisely the same position that Feyh would have occupied had he been living. This position does not rest upon the doctrine of estoppel, as such term is ordinarily used, but upon a principle which has been repeatedly recognized by the courts, that where a party has gone into a court and invoked its jurisdiction he cannot subsequently attack the decree of the court obtained at his *508
instance because of the want of jurisdiction of somebody else." This decision was affirmed in this court (
There are a number of cases in which the courts of this state have refused to recognize the validity of divorces obtained in other states upon grounds insufficient for that purpose in this state when the defendant resided here and was not personally served with process and did not appear in the action. (Matter ofKimball,
We think the case under consideration cannot be distinguished from that of Swales or Morrisson. It is true that in theSwales case the petitioner was seeking administration instead of dower, but if she was the widow of the decedent she had a statutory right to administer the estate, and the plaintiff in her action for dower has no greater right. In the Swales case the petitioner after procuring her decree of divorce had remarried. In this case the plaintiff procured her divorce, but did not remarry; but it does not appear to us that this distinction affects the legal proposition involved.
It is said in the Swales case that the action of the plaintiff in procuring the decree of divorce in Illinois does not constitute an estoppel within the ordinary acceptation of that term; for the reason that it did not influence the decedent to do anything *509
which he would not otherwise have done. That may be true in that case; and yet in other cases the decree may influence parties to do that which they otherwise would not have done. The statute of the state of Massachusetts, upon certain conditions, permits both parties to marry again. If Starbuck had gone to that state and had contracted a marriage with a woman there, who acted upon the faith of the decree that the plaintiff had obtained, it may be that a question of estoppel would have been presented. (Moore
v. Hegeman,
The judgment of the Appellate Division and that of the trial court should be reversed and the plaintiff's complaint dismissed, with costs.
PARKER, Ch. J., GRAY, BARTLETT, CULLEN and WERNER, JJ., concur; O'BRIEN, J., absent.
Judgment reversed, etc.
