In re Holmes' Estate

• Decision Date: 24 November 1943
• Citation: 52 N.E.2d 424,291 N.Y. 261
• Parties: In re HOLMES' ESTATE.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 261

52 N.E.2d 424

In re HOLMES' ESTATE.

Court of Appeals of New York.

Nov. 24, 1943.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Applications by Ernest H. Davis and by Frances M. Lawson for letters of administration upon the estate of Anna Holmes. From an order, 265 App.Div. 1033, 41 N.Y.S.2d 172, entered January 27, 1943, and reversing on the law an order of the Niagara County Surrogate's Court (Knowles, S.) for applicant Lawson and remitting the matter with directions to issue letters to applicant Davis, applicant Lawson appeals.

Affirmed.

CONWAY RIPPEY, and LEWIS, JJ., dissenting.

J. Carl Fogle, of Lockport, for appellant.

Joseph Speranza, of Lockport, for respondent.

LEHMAN, Chief Judge.

Anna Holmes married Ernest H. Davis in the township of Reno, State of Nevada, on September 18, 1937. After the marriage they moved to Lockport in Niagara County, New York, where they have continuously resided until the death of the decedent, then known as Anna Holmes Davis, in January, 1942. At her death, Frances M. Lawson applied to the Surrogate's Court of Niagara County for letters of administration upon the decedent's estate, citing Ernest H. Davis as the alleged husband of the deceased. Ernest H. Davis filed an answer to her petition alleging in substance that he was the husband of the deceased and entitled to letters of administration; and on the same day he applied to the court for such letters.

The validity of the marriage between the decedent and Ernest H. Davis is challenged on the ground that at the time of the marriage he had a lawful wife residing in Lockport, New York. The controversy was submitted to the Surrogate upon an agreed statement of facts. It appears from this statement that: ‘Ernest H. Davis, who claims to be the husband of the said deceased, had been previously married to one Helen M. Davis. That in the month of June, 1937, the said Ernest H. Davis went to Reno, Nevada, and there commenced an action for absolute divorce against the said Helen M. Davis. That in his complaint in Nevada, said Ernest H. Davis alleged that he and the said Helen M. Davis were married in New York State on October 18th, 1926, and that said Helen M. Davis resides at Lockport, New York. That said complaint alleged, as the only grounds for said divorce, ‘That defendant has treated plaintiff with extreme cruelty, and that the acts of cruelty so committed by said defendant have caused plaintiff great mental anguish and physical pain, causing him to become sick and nervous, made his life miserable and unbearable,and further cohabitation with defendant impossible’. That said Helen M. Davis did not appear by attorney or in person and was not served personally with a summons, but was served by publication. On September 18th, 1937, the said Ernest H. Davis obtained a decree of absolute divorce against the said Helen M. Davis and on the same day the said Ernest H. Davis married Anna Holmes in the Township of Reno, State of Nevada. The said decree of divorce obtained against the said Helen M. Davis was obtained by the said Ernest H. Davis on the grounds alleged in his complaint, which was not adultery.'

In December, 1937, after the marriage of the decedent and Ernest H. Davis and their removal to Lockport, New York, ‘Helen M. Davis commenced an action in the Supreme Court of this state against the said Ernest H. Davis for absolute divorce on the ground of adultery, alleging specifically that the said Ernest H. Davis was living in adulterous relationship with the said Anna Holmes Davis. The said Ernest H. Davis filed an answer to this summons and complaint alleging, in substance, that the said Helen M. Davis refused to go to the western part of the United States with the said Ernest H. Davis in June, 1937, and that the said Ernest H. Davis did obtain a Nevada divorce from the said Helen M. Davis on grounds other than adultery, and that he married Anna Holmes Davis and that he and the said Anna Holmes Davis, after their marriage, came to Lockport, New York, and held themselves out to the public as husband and wife.’

The divorce action in this State was referred to a referee, who reported:

‘1. That the same was duly brought on for hearing at the Court House in the City of Lockport, New York, on the 8th day of June, 1939, at ten o'clock in the forenoon of that day, pursuant to notice thereof duly served upon the Defendant and his attorney; that upon said hearing he was attended by David E. Jeffery, Counsel for the Plaintiff, and by Joseph Speranza, Counsel for the Defendant, who stated in open court and for the record that no defense would be interposed by the Defendant; that he has heard the evidence and testimony and after due deliberation being thereupon had, makes and returns the following decision upon the questions of fact and law involved and finds the following:

'Findings of Fact

‘1. That the Plaintiff and the Defendant herein were married at the Town of Stafford, Genesee County, New York, on the 18th day of October, 1926.

‘2. That the Plaintiff and the Defendant have ever since their said marriage been and now are actual residents and inhabitants of the City of Lockport, Niagara County, New York.

‘3. That on and subsequent to the 18th day of September, 1937, the Defendant herein has committed adultery by living in adulterous intercourse with a female known as Anna Holmes or Anna Davis at 179 Park Avenue, in the said City of Lockport, New York, and,

‘4. That the said acts of adultery have been committed without the consent, connivance, privity or procurement of the Plaintiff.

‘5. That the Plaintiff has not voluntarily co-habited with the Defendant since the discovery of the said act of adultery.

‘6. That five (5) years have not elapsed since the discovery of said act of adultery by the Plaintiff.

‘7. That the Plaintiff has not forgiven nor condoned the said act of adultery.

‘8. That no decree of divorce has been granted against either Plaintiff or Defendant in any of the Courts of any State or Territory of the United States or of any foreign country and that no action for divorce has ever been brought by either of the parties against the other, except that the Defendant procured an alleged decree of divorce against the Plaintiff in an action brought by him, as Plaintiff, in 1937, in the District Court of the State of Nevada, in which action the Plaintiff did not appear in any manner.

'Conclusions of Law

‘1. That the Plaintiff is entitled to final judgment, unless the Court shall otherwise order in the meantime, three months after the filing of the decision herein and the entry of interlocutory judgment dissolving the marriage between the Plaintiff, Helen M. Davis, and the Defendant, Ernest H. Davis, which was solemnized on the 18th day of October, 1926, and divorcing the parties on the ground of Defendant's adultery and permitting the Plaintiff to remarry, but forbidding the Defendant to remarry any other person during the lifetime of the Plaintiff, except with the permission of the Court, and permitting the Plaintiff to resume the name of Helen Marie Lacy. Let Judgment be entered accordingly.’

It further appears from the agreed statement of facts that judgment was entered in accordance with said Referee's Report, and became final in September, 1939. No appeal was ever taken from said New York State judgment. Anna Holmes Davis or Anna Holmes knew, at the time that the said Ernest H. Davis obtained a Decree of Divorce against his said wife, that the said first wife was then living in Lockport and the said Anna Holmes Davis also knew that the first wife of the said Ernest H. Davis began divorce proceedings in the State of New York against him on the ground that he, the said Ernest H. Davis, was living in adulterous intercourse with the said Anna Holmes Davis.

Upon these facts, the Surrogate on October 7, 1942, rendered his decision, stating: ‘I am constrained here to hold that at the time of the death of Anna Holmes Davis, Ernest H. Davis was not her legal husband, and therefore his petition for the issuance of Letters of Administration upon her estate should be and is denied.’ He held that he must refuse to give effect within this State to the divorce decree obtained in Nevada by Ernest H. Davis against his wife, Helen M. Davis, a resident of Lockport. As authority for his conclusion he cited the opinion of this court in Hubbard v. Hubbard, 228 N.Y. 81, at page 85, 126 N.E. 508, 509, that ‘the principle of comity between the states of the United States does not require of a state the operation of a divorce decree of a sister state which violates the principles of morality, or the public policy, or municipal regulations established by it. Apart from constitutional obligations the law of no state can have effect as law beyond the territory of the state imposing it, unless by permission of the state where it is allowed to operate.’

In the case of Hubbard v. Hubbard, supra, 228 N.Y. page 84, 126 N.E. page 509, this court applied the ‘adjudged policy of this state to refuse to recognize as binding a decree of divorce obtained in a court of a sister state, not the matrimonial domicile, upon grounds insufficient for that purpose in this state, when the divorced defendant resided in this state and was not personally served with process and did not appear in the action.’ The court pointed out in its opinion that ‘it has been conclusively established that such policy is not hostile to the full faith and credit clause of the Federal Constitution. Article 4, s 1; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1.’ Relying upon the rule ‘conclusively established’ in Haddock v. Haddock, the courts of this State have applied the same ‘adjudged policy’ until December, 1942, when the Supreme Court of the United States in Williams v. North Carolina, 317 U.S. 287, 303, 63 S.Ct. 207, 215, 143 A.L.R. 1273, reconsidered its decision in Haddock v. Haddock and expressly...