Bourne's Estate, In re

• Decision Date: 04 May 1955
• Citation: 142 N.Y.S.2d 777
• Parties: In re Arthur K. BOURNE, Jr.'s, ESTATE. Surrogate's Court, Suffolk County
• Court: New York Surrogate Court

Page 777

142 N.Y.S.2d 777

In re Arthur K. BOURNE, Jr.'s, ESTATE.

Surrogate's Court, Suffolk County.

May 4, 1955.

Frederick W. Tuck, Jr., Sayville, for petitioner, Elizabeth Schneider bourne.

Lloyd P. Dodge, Patchogue, for applicant, Beatrice Barbara Brennan.

Arthur M. Cromarty, Amityville, special guardian for Lawrence Gilbert Bourne and Arthur K. Bourne, III, Infants.

HAZLETON, Surrogate.

Two applications seeking letters of administration on the estate of Arthur K. Bourne, Jr., are before the Court. One of the applicants is a daughter of the decedent by his first wife; the other claimant is decedent's second wife.

It appears from the evidence thus far adduced that the first wife entered into a separation agreement with her husband, the decedent, whereby, among other things, she renounced all interest, right or claim in the separate estate of her husband. Thereafter the husband obtained a decree of divorce against the first wife in the State of Florida. There are three children of the first marriage and one child of the second marriage.

The petitioning daughter now contends that her father's divorce against his first wife was invalid, and consequently the validity of the second marriage has been put at issue.

Both the first wife and the second wife (so referred to in the testimony) have survived the decedent and are presently living. It appears further that the first wife has waived all right to letters of administration (assuming she be entitled thereto) in favor of her daughter, one of the applicants for letters above mentioned.

Testimony has been heard by the Court with respect to the issue of the validity of the second marriage, which issue as we have seen is raised by the petitioning daughter of the first marriage, and is also raised by the Special Guardian for two infant sons by the first marriage, who supports the applicant daughter's position.

There has been received in evidence a declaration of Evidence of Domicile filed by decedent in accordance with the statutes of the State of Florida, F.S.A. § 222.17, setting forth that decedent resided in the County of Palm Beach, State of Florida; that he previously had recided at New Canaan, Connecticut, but that his abode in Florida constituted his predominant and principal home and that he '* * * intends to continue it permanently as such * * *'. Decedent further declared 'that he is an actual bona fide and legal resident of the State of Florida and the filing of this affidavit is to be accepted by all persons or any court as proof of such legal residence and permanent domicile'. In the case at bar, the decedent concededly fulfilled the ninety day residence requirement.

The second wife, Elizabeth Schneider Bourne, challenges 'the right of a daughter to attack in New York the validity of her deceased father's Florida divorce * * *', citing Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 478, 95 L.Ed. 552, reversing In re Johnson's Estate, 301 N.Y. 13, 92 N.E.2d 44. In that case, the United States Tribunal wrote:

"It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment.' * * *

'We conclude that Florida would not permit Mrs. Muelberger to attack the Florida decree of divorce between her father and his second wife as beyond the jurisdiction of the rendering court. In that case New York cannot permit such an attack by reason of the Full Faith and Credit Clause. When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids.'

Thus we have the clear holding that a foreign divorce is entitled to full faith and credit, and cannot be impeached by the court of a sister state on the ground that the court granting the divorce had no jurisdiction for lack of the requisite domicile of one of the parties, unless it is so impeachable in the state in which it is rendered. In other words, the full faith and credit clause forbids an attack in New York upon a Florida divorce decree, by a child of the divorced spouses, where the child has no standing to make such an attack upon the decree under Florida domestic law. And Florida, as the Johnson case shows, does not permit such an attack, by reason of the fact that the child of the first marriage had a mere expectancy at the time of the divorce and is not prejudiced in regard to some pre-existing right.

The pertinent Florida law in this respect from Gaylord v. Gaylord, Fla., 45 So.2d 507, at page 509, and alluded to by the Supreme Court in the Johnson case, supra, reads:

'We have no overlooked the numerous authorities which the respondent has cited in support of his position that a third party may set up the invalidity of a decree as a defense when said decree is attempted to be...