In re Estate of Ainscow
| Decision Date | 29 September 1943 |
| Citation | 27 Del.Ch. 423,34 A.2d 593 |
| Court | Court of Chancery of Delaware |
| Parties | In the Matter of the Estate of ALLEN H. AINSCOW, deceased |
PETITION FOR A DECREE OF DISTRIBUTION. On June 13, 1941, the Register of Wills for New Castle County granted letters of administration to Maynard S. Alexander, upon the estate of Allen H. Ainscow, who died a resident of New Castle County and intestate, on June 24, 1938.
On January 23, 1943, the administrator filed his final account with the said Register of Wills, which was thereafter duly approved, and which showed $ 30,044.66 remaining in the hands of the administrator for distribution among those entitled thereto.
Allen H. Ainscow, left to survive him, as his only next of kin, a brother, a sister, and the descendants of four deceased brothers and sisters. He also left to survive him a reputed widow, Jennie M. Ainscow, who died September 25, 1942. Letters of administration upon her estate were in due form of law granted by the said Register of Wills to the said Maynard S. Alexander.
Frank Ainscow and Harry Maculley claim that they are entitled to a distributive share of the sum remaining in the hands of the administrator, as next of kin of Allen H. Ainscow. On the other hand, the entire sum is claimed by Maynard S Alexander, as administrator of the estate of Jennie M Ainscow, deceased, the reputed widow.
The controversy between the parties grew out of the alleged invalidity of the marriage between Allen H. Ainscow and Jennie M. Ainscow, by reason of the alleged invalidity of a decree entered by the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, on August 9, 1937, divorcing Jennie M. Ainscow, then known as Jennie M. Alexander, from her husband, Mayrice F. Alexander. Mayrice F. Alexander and Jennie M. Alexander were married on September 12, 1901, and thereafter lived and cohabited together as man and wife until some time in 1934 or 1935, when they separated. Following the entry of the decree of divorce by the Nevada court, on August 9, 1937, Jennie M. Alexander returned to the State of Delaware, and on August 14, 1937, she was married in the State of Delaware to the said Allen H. Ainscow.
In brief, the questions presented for determination are:
1. Was the decree of the Nevada court invalid and void
"* * * If any inhabitant of this State shall go into another state, territory or country in order to obtain a decree of divorce for a cause which occurred while the parties resided in this State * * * a decree so obtained shall be of no force or effect in this State", or
2. Is the validity of the decree of the Nevada court subject to collateral attack by the next of kin of Allen H. Ainscow?
3. Is it necessary for the personal representative of Jennie M. Ainscow to establish the validity of the decree of the Nevada court?
The case was heard on oral testimony by the court. Other facts will appear in the opinion of the court.
Walter J. Willis, for petitioner Frank Ainscow.
Joseph A. L. Errigo, for respondent Harry Maculley.
Ivan Culbertson, for respondent Maynard S. Alexander.
OPINION
This is a proceeding under the provisions of Chapter 143, Volume 42, Laws of Delaware. The application of Frank Ainscow was by petition. After notice, as required by the statute, had been given to all other interested parties, Maynard S. Alexander, as administrator of the estates of Allen H. Ainscow, deceased, and Jennie M. Ainscow deceased, appeared and filed an answer to the petition. To this answer a reply was filed by the applicant. No answer to the petition was filed by any of the other respondents. At the hearing the applicant and the respondents, Maynard S. Alexander, as administrator of the estates of both decedents, and Harry Maculley, were represented by counsel. None of the other respondents appeared either in person or by counsel.
Under the language of the statute, it is the duty of the court to consider the rights of all interested parties, as if they are claimants, therefore no burden is imposed and no presumptions arise by reason of an interested party occupying either the position of petitioner or of respondent. The decree entered must rest upon the strength of the rights of the respective parties to the proceedings, as disclosed by the evidence, irrespective of the position which they occupy.
Witnesses called on behalf of the petitioner and the respondent Harry Maculley testified in effect that Jennie M. Ainscow and her first husband, Mayrice F. Alexander, lived in Delaware, a number of years prior to their marriage in the year 1901. The residence of Mrs. Ainscow immediately before her first marriage was at Lewes, Delaware. Following that marriage, they lived and cohabited as man and wife in the City of Wilmington, in this State, until about 1934 or 1935, when they separated, and the wife went to New York State, where she had an apartment. She took her furniture with her and stayed there at least one year. Upon leaving the State of New York she returned to Wilmington, and from there she went to Lewes. She had become a member of St. Paul's Church in Wilmington in 1916, and on April 29, 1937, she transferred her membership to the Methodist Episcopal Church in Lewes. When she left for Reno in 1937, she went from Lewes. It was conceded by the administrator that Jennie M. Alexander was never divorced from her husband, Mayrice F. Alexander, by any court within the State of Delaware.
From the testimony of Maynard S. Alexander, the administrator and a son of Mayrice F. Alexander and Jennie M. Alexander, it appeared that his father and mother had separated early in January, 1935, and at that time his mother moved with her furniture into an apartment which she had already rented, in Mount Vernon, New York; that early in June, 1937, Allen H. Ainscow asked the witness for and received his consent to marry the then Jennie M. Alexander, the mother of the witness. Later Ainscow told Alexander that he had urged his (Alexander's) mother to take up residence in Reno, Nevada, and that she had consented to do so, and he then handed the witness $ 500 in cash to be used for his mother's railroad fare and her expenses while she was in Reno. The money was used for such purposes, his mother went to Reno, obtained a divorce from her husband, and returned to Delaware. Upon her return she married Ainscow. The witness identified a check dated July 16, 1937, drawn by Allen H. Ainscow to the order of Jennie M. Alexander, in the amount of $ 150, which was endorsed by Jennie M. Alexander and F. Raffeto, and deposited in a Reno bank. The check was admitted in evidence and the witness testified that the proceeds of the check went to pay Mr. Raffeto, who was Mrs. Alexander's attorney, for services and expenses.
From the documentary evidence it appeared that the divorce decree of the Nevada court was signed on August 9, 1937. On August 13, 1937, Allen H. Ainscow and Jennie M. Alexander made a written application to the Clerk of the Peace in Wilmington for a marriage license, which was signed by both of the applicants. In the application the residence of Jennie M. Alexander was given as Lewes, Delaware. From the original return of marriage between Allen H. Ainscow and Jennie M. Alexander, it appeared that the ceremony was performed on August 14, 1937, at Lewes, Delaware.
The complaint filed in the divorce proceedings in Nevada was verified and contained the following averment:
"That the plaintiff is a resident of the State of Nevada and now resides, and during all of the time for six weeks last, past, and immediately preceding the filing of this complaint, continuously has resided in and been an actual and bona fide resident of and domiciled in the State of Nevada, and during all of said time was, and now is, physically and corporeally present, within the State aforesaid."
The complaint alleged as the ground for divorce "extreme cruelty."
The decree for divorce is, in part, as follows:
"And it appearing to the satisfaction of the Court from the evidence and the findings of fact and conclusions of law that the plaintiff was at the time of the commencement of this suit, and for more than six weeks prior thereto, continuously has been and still and now is an actual and bona fide resident of and domiciled within the County of Washoe, State of Nevada, and that the defendant has duly appeared herein; and it further appearing to the satisfaction of the Court that all the allegations of the complaint are true and are sustained by the evidence and the findings of fact, and that as conclusions of law the plaintiff is entitled to the relief herein given;"
It was stipulated by counsel for the petitioner Frank Ainscow, and Maynard S. Alexander, as administrator, that the pertinent provisions of the Nevada statute provide that:
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...v. Standard Oil, 182 F. 421, 425 (C.C.Ill.1910) and Willingham v. Swift & Co., 165 F. 223, 224 (C.C.Ga.1908) and In re Ainscow's Estate, 27 Del.Ch. 423, 34 A.2d 593 (1943), rev'd on dif. grounds, Ainscow v. Alexander, 28 Del.Ch. 545, 39 A.2d 54 3 These acts are presently codified as 18 U.S.......