Roth v. Roth

• Decision Date: 30 September 1882
• Citation: 1882 WL 10371,104 Ill. 35,44 Am.Rep. 81
• Parties: MADELAINE ROTHv.AMALIE STAEHLE ROTH et al.
• Court: Illinois Supreme Court

104 Ill. 35

1882 WL 10371 (Ill.)

44 Am.Rep. 81

MADELAINE ROTH

v.AMALIE STAEHLE ROTH et al.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.Rehearing denied September Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

The record in this case shows that John George Roth, a subject of the kingdom of Würtemberg, came to this country, and settled in Chicago at an early day, and there accumulated a large amount of property, consisting chiefly of real estate, which is the subject of controversy in this suit; that in 1855 he married, in Chicago, Madelaine Moser, a native and subject of France, who had a short time before accompanied him on a return visit from that country to this; that in 1856 they returned to Europe, and on their arrival in that country, or shortly afterwards, owing to certain difficulties and misunderstandings, a separation took place, resulting in her returning to reside with her father, in Alsace, France, her former domicile and residence, and in his establishing a new residence in Schorndorf, in the said kingdom of Würtemberg, where he continued to reside until the time of his death, which occurred on the 12th of July, 1876; that in 1862 his wife returned to this country and instituted proceedings for a divorce, where she was shortly afterwards followed by her husband, and through his influence induced to abandon the divorce suit and return with him to Schorndorf, where they again resumed marital relations, which were continued until October, 1870, when he commenced legal proceedings in the proper court, at their domicile in Würtemberg, to procure a decree of nullity of their marriage on the ground it had been entered into on his part in violation of the laws of the kingdom of Würtemberg, of which he was at that time a subject; that on the 24th of April, 1873, the cause was brought to a final hearing, both parties being present, and represented by their respective counsel, resulting in a decree declaring the marriage a nullity, on the ground just stated; that the court in which the decree was rendered had jurisdiction, both of the parties and the subject matter of the suit, and under the laws of Würtemberg had full power and competent authority to enter the decree; that on the 9th of September following, in consideration of $8000 in United States bonds paid to her by Roth, Madelaine, his former wife, released to him all her interests, whatever they might be, in the property in controversy; that on the 27th of November following, Roth contracted a second marriage with Amalie Staehle, who now claims the estate in controversy; that after the marriage of Amalie and Roth, on the 28th of March, 1874, they entered into an agreement known to laws of Würtemberg as a “marriage and inheritance contract,” by which it was provided they were to hold the property belonging to them respectively during their joint lives as common property, with the right of survivorship to the longer liver, subject to the payment of their debts, the education and marriage portions of their children, and to the payment by her, in the event she survived him, of certain legacies to his relations, amounting altogether to 80,000 florins, which contract was duly approved and confirmed by the proper court of that country; that immediately before his death, and with a view of enabling his wife to carry out the contract just mentioned, Roth conveyed, or attempted to convey, the property in controversy to her brother, Albert Staehle, but that whatever interest passed by it was subsequently reconveyed by him to Amalie; that after Roth's death, on the 25th of September, 1876, Madelaine visited Schorndorf, and while there spent much of her time with Amalie, and accepted of her various presents, etc.; that on the 26th of the same month, Madelaine, in consideration of 10,000 marks, released to Amalie all claims to and upon her late husband's estate, and on the 3d of October following, executed to her a deed to the property in controversy; that Roth, at the time of his death, left no child or children, or descendants thereof.

Under these circumstances, in 1878, the present bill was filed by Madelaine, in the Superior Court of Cook county, against Amalie and the heirs at law of Roth, in and by which she claims that the marriage between her and Roth was a legal and valid marriage; that the decree of the Würtemberg court, and all the proceedings upon which it is based, were and are null and void, and that she is therefore the lawful widow and heir of her said husband, and as such entitled to a partition and division of his estate, under the statute. Amalie answered the bill, and also filed a cross-bill, setting up the facts above recited, and relying on them to establish her rights, as the survivor and lawful widow of Roth, to the property in dispute. A cross-bill was also filed by the heirs of Roth, setting up their rights in the premises. The court found the equities with Amalie upon her cross-bill, and entered a decree dismissing the original bill, and directing the heirs of Roth to be paid the amount due them under the “marriage and inheritance contract.” That decree has been performed as to the heirs of Roth, and Madelaine Roth alone brings the case by appeal to this court for review.

Mr. C. M. HARRIS, for the appellant:

Penal laws are strictly local, and those of one country can not be regarded in another. Folliott v. Ogden, 1 H. Bl. 135; Ogden v. Folliott, 3 Term, 733; Warrender v. Warrender, 3 C. La. & Fin. 538; Commonwealth v. Green, 17 Mass. 548; Story's Const. 16, secs. 91, 104; Dicey on Domicile, 160.

Statutes restricting the liberty of marriage are penal. Hodgkinson v. Wilkheir, 1 Hagg. Const. 262.

That the validity of a marriage depends on the law of the country where it is celebrated, see Bishop on Marriage and Divorce, sec. 371; Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485; Ruding v. Smith, Id. 371, Id. 551; Middleton v. Janverin, Id. 437, Id. 582; Scrimshire v. Scrimshire, Id. 385, Id. 565.

A foreign decree has no extra-territorial force, save through comity. Woolsey on International Law, sec. 75; Story's Conflict of Laws, 603-607.

If it conflicts with reason and justice, or if the court has proceeded upon false premises or inadequate reasons, or mistake of local or foreign law, it will not be enforced elsewhere. Simonin v. Mallac, 2 Sw. & Tr. 67; Simpson v. Fogo, 32 L. J. Ch. 249; Parsons on Contracts, 606; Wharton on International Law, 747; Don v. Lipman, 5 Cl. & Fin. 20; Novelli v. Rossi, 2 B. & Ad. 757; Reimers v. Druce, 23 Beav. 145.

Such decree will not be enforced when it will directly or indirectly give effect to an act which infers a scandal on society or a breach of national morals and decency, or when it would be detestable or pernicious, as, the enforcement of a contract with a prostitute for her prostitution, although valid when made. Birthwhistle v. Vardill, 5 B. & C. 455; Fenton v. Livingstone, 3 Macq. 537; Bank of Augusta v. Earl, 13 Pet. 518; Greenwood v. Cartes, 6 Mass. 358.

A marriage settlement made in a foreign country does not of itself affect real estate here, and can, if at all, only by suit under the laws of this State. 73 Ill. 285; 15 La. Ann. 317.

Executory contracts do not transmit title. Olney v. Howe, 89 Ill. 556.

An executory agreement, or imperfect conveyance upon a merely voluntary consideration, will not be enforced or aided in equity. 64 Ill. 548; 1 White & Tudor's Leading Cases, 420, 427; 1 Select Cases, (Ala.) 535.

Messrs. ROSENTHAL & PENCE, for the appellee Amalie S. Roth:

Where a contract to marry is executed, its nature as a contract is merged in the higher nature of a status, and the contract no longer exists. This status travels with the spouses wherever they go, and becomes subject to the laws of the State where the parties may become domiciled, and is there under control of the sovereign power. 1 Bishop on Marriage and Divorce, secs. 3, 667; Story's Conflict of Laws, secs. 228-230; Barber v. Root, 10 Mass. 265; Strader v. Graham, 10 How. 82; Maguire v. Maguire, 7 Dana, 181; Cheever v. Wilson, 9 Wall. 108; Harrison v. Harrison, 19 Ala. 499; Harvie v. Farnie, L. R. 5 P. D. 153; 43 L. T. R. 738.

It is clearly competent for every nation to say that certain marriages of its subjects or citizens shall be invalid, wherever they may be contracted. Story's Conflict of Laws, secs. 114d, 117; Foote's Priv. Int. Jur. 272, 273; 1 Burge on Colonial Law, 188, 195, 196; Wharton's Conflict of Laws, sec. 161; Lawrence's Wheaton, 172; 4 Phillimore's International Law, 29; Piggott's Foreign Judgments, 167, 168; Maxwell on Stat. 119; Fenton v. Livingstone, 5 Jur. N. S. 1183; 3 Macq. 497; Sussex Peerage case, 11 Cl. & F. 85; Sottomayer v. De Barros L. R. 3 P. Div. 5; Mette v. Mette, 1 Sw. & Tr. 416; Brook v. Brook, 3 Id. 481; Warrender v. Warrender, 2 Cl. & F. 529.

If an incapacity to marry exists in a State of which the parties are citizens or subjects, and if the marriage of persons possessing such incapacity is declared by the statute of their State to be null and void wherever the same may be contracted, and if such persons go to another State where such incapacity does not exist, and there marry, and then return to their own State, such marriage will be held null and void in the latter State. Kinney's case, 30 Gratt. 858; Williams v. Oatis, 5 Ired. 535; State v. Kennedy, 76 N. C. 251; Dupree v. Boulard, 10 La. Ann. 411; Commonwealth v. Lane, 113 Mass. 458; Commonwealth v. Hunt, 4 Cush. 49; Medway v. Needham, 16 Mass. 157.

Where, by the positive law, consent of government is required to marry, such want of consent will invalidate the marriage. Sussex Peerage case, 11 Cl. & F. 85; Sottomayer v. De Barros, L. R. 3 P. Div. 5; Fenton v. Livingstone, 5 Jur. N. S. 1183; Story's Conflict of Laws, sec. 114 d.

Every country must be permitted to judge of the policy of its own law, and to enforce the same. This is a...