46 A.2d 258 | Pa. | 1946
Argued January 8, 1946. A family group, entitled to a share of the income arising from the trust provisions of a decedent's will, are here attempting to exclude the children of one of the deceased life beneficiaries from also sharing therein, on the ground that they are illegitimate.
The testator, George W. Thorn, died in 1886. By his will he left his residuary estate in trust for three sisters and six nephews and nieces for their respective lives, the trust to continue until the death of the last survivor; meanwhile, upon the death of a sister her share of the income was to go to the surviving sisters, nephews and nieces and the issue of then deceased nephews and nieces; upon the death of a nephew or niece his or her share of the income was to go to his or her then living issue until the termination of the trust, at which time the principal was to vest in the then living children of the nephews and nieces and the issue of any then deceased children per stirpes.
Only one of the original life tenants, Mary G. Skinner, a niece, is still living and receiving a share of the income. George W. T. Snare, the son of John T. Snare, a deceased nephew, is now receiving his father's share. A niece, Annie S. Bullock, died in 1926 survived by a son George A. Bullock, who received his mother's share until his own death in 1943. Upon George A. Bullock's death the trustees of the Thorn estate filed an account in the adjudication of which the present controversy arose as to the distribution of the accrued income; one share is admittedly payable to Mary G. Skinner and another to George W. T. Snare; the third share is claimed by Bullock's children, — a claim disputed by Mary G. Skinner, her children and grandchildren, who would have the income divided only between her and George W. T. Snare. The court below rejected the contention of the Skinners and allotted a one-third share to the Bullocks. The Skinners appeal from that award. *606
George A. Bullock was married in 1895 to Anna Hooley, and by her had one child who predeceased him leaving no issue. In 1903 he left Philadelphia, where he had previously resided, and went west; in 1920 he established his domicile in Elkhart County, Indiana, where he lived for the remainder of his life, a period of nearly 24 years. In 1907 he began a cohabitation with one Margaret Omlor which continued until his death, and by her had nine children, the last of whom was born in 1923 and of whom seven survive; these seven, claiming the share of the income previously enjoyed by their father, are the present appellees. Their legitimacy depends primarily upon the validity of a divorce from his wife Anna which Bullock obtained in 1929 and which is the target of the Skinner attack. Promptly after that divorce was granted Bullock married Margaret Omlor, and appellees claim they were legitimated by reason of that marriage.
Our consideration of the case properly starts with a recognition of both the factual presumption that children are legitimate and the rule that, to overcome it, there is required clear, direct, satisfactory and irrefragable proof to the contrary: Senser v. Bower, 1 P. W. 450; Thewlis's Estate,
It is an elementary principle that when a judgment or decree of a court having jurisdiction of the parties and the subject-matter is challenged in another State "the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based": Milliken v. Meyer,
Appellants claim that the Indiana court which rendered the decree of divorce in favor of Bullock had no jurisdiction over his wife because she was not served with process and had no notice or knowledge of the proceedings until after the decree was entered. The Indiana law then in force (Act of March 13, 1879, ch. 45, p. 124) provided that "If it shall appear by the affidavit of a disinterested person that the defendant is not a resident of this State, the clerk shall give notice of the pendency of such petition by publication for three successive weeks in some weekly newspaper of general circulation, published in such county, . . . Provided, That the plaintiff shall, in case such notice is to be given by publication as aforesaid, before the same is given, file his or her affidavit with the clerk, stating therein the residence of the defendant, if such residence be known to the plaintiff, and if such residence be unknown to the plaintiff, such affidavit shall so state; and in case such affidavit state the residence of the defendant, the clerk shall forward, by mail, to such defendant the number of the paper containing such notice, with the notice marked." It is not contended that such a provision for notice by publication *608
runs afoul of the requirement of due process; our own Divorce Law of 1929, P. L. 1237, § 29, provides for a three weeks' publication if the respondent cannot be personally served (see also Nixon v. Nixon,
By the Indiana Act of March 10, 1873, ch. 43, § 6, p. 107, it was provided that a party against whom a judgment of divorce is rendered without other notice than publication in a newspaper may at any time within two years after the rendition of such judgment have the same opened and be allowed to defend on the granting of the divorce, the allowance of alimony and the disposition of property. Bullock's wife, although she admittedly knew of the decree against her within a few days after it was rendered, made no attempt to avail herself of this statutory right, but in July, 1929, she filed a bill in equity against Bullock in the Municipal Court of *610 Philadelphia setting forth the fact of the decree, alleging that she had had no notice of the proceedings while they were pending, claiming that Bullock had deserted her and that she was entitled to support, and asserting that they had agreed through their respective counsel that a decree might be entered directing him to pay her $1,000 per annum for ten years out of the income from the trust estate. The Municipal Court entered a decree accordingly and those payments were subsequently made. The Bullocks say that the settlement thus agreed upon was merely to make up for the support which Bullock had failed to furnish his wife prior to his obtaining the divorce; the Skinners, on the other hand, assert that the settlement and the decree entered thereon constituted a virtual admission by him that the divorce had not been validly obtained and was ineffective and void. But just as the failure of the wife to institute proceedings in Indiana to upset the decree within the two years after it had been granted could not, as against appellants, effect its validation if in fact it was void for want of jurisdiction over her, so the order for support entered in the Municipal Court could not invalidate the decree of divorce if in fact valid when rendered, and Bullock could not, by acquiescence in the support order, impair the rights of his children which had previously vested by reason of the decree of divorce and his subsequent marriage.
The divorce decree was entered on March 8, 1929; on the following May 20th Bullock and Margaret Omlor were married. The Indiana Act of March 10, 1873, ch. 43, § 6, p. 107, previously referred to, provided that it should not be lawful for a party obtaining a judgment of divorce without other notice than publication in a newspaper to marry again until the expiration of two years after the rendition of such judgment, this prohibition to be stated in the decree of the court. In the decree of March 8, 1929, no such restriction was expressed, but, in any event, it was held in Mason v. Mason, *611
By ch. 27, § 9, Revised Statutes of Indiana, Vol. 1, 1852, p. 248, it was provided that "If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate." There was testimony, not only by Margaret Omlor herself but by Bullock's attorney, that Bullock did acknowledge his children by Margaret Omlor as his own. They were thus legitimated according to the law of Indiana and it is well established that the status of legitimacy is created by the law of the domicile of the parent whose relationship to the child is in question: Restatement, Conflict of Laws, § 137; McCausland's Estate,
The testator's will provided that upon the death of any nephew or niece his or her share should go to his or her issue then living; that provision is to be construed as meaning that if, at the time of a nephew's or niece's death, there should be both children and grandchildren of such nephew or niece living, the children should take in the first instance to the exclusion of the grandchildren, — that is, the "issue" of the nephew or niece should take their life interests per stirpes instead of the children and grandchildren taking per capita: Mayhew'sEstate,
The decree awarding one-third of the income to Mary G. Skinner, one-third to George W. T. Snare, and, of the remaining one-third, so much as accrued in the lifetime of George A. Bullock to the personal representative of his estate and the balance in equal shares to the seven surviving children of George A. Bullock and Margaret Omlor Bullock, is affirmed; costs to be paid by appellants.
