In re Lindgren's Estate

• Citation: 55 N.E.2d 849,293 N.Y. 18
• Parties: In re LINDGREN'S ESTATE. In re JORDI.
• Decision Date: 25 May 1944
• Court: New York Court of Appeals

293 N.Y. 18

55 N.E.2d 849

In re LINDGREN'S ESTATE.

In re JORDI.

Court of Appeals of New York.

May 25, 1944.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the application of Sonia Jordi for letters of administration on the estate of Homer D. Lindgren, deceased, wherein Gladys McD. Lindgren, claiming to be decedent's widow, filed a cross-petition. From an order of the Appellate Division, 267 App.Div. 775, 46 N.Y.S.2d 224, entered December 28, 1943, which unanimously affirmed a decree of the Kings County Surrogate's Court, McGarey, Surrogate, 181 Misc. 166, 43 N.Y.S.2d 154, adjudging that Gloria S. Lindgren, decedent's infant daughter, is sole distributee of his estate, and that petitioner, as guardian of the property of said infant, is entitled to letters of administration thereon, the cross-petitioner appeals.

Affirmed.

DESMOND, J., and LEHMAN, C. J., dissenting. Nathaniel S. Corwin, Douglas E. Mathewson, and Douglas Mathewson, all of New York City, for appellant.

Eugene T. McGuade, of New York City, for respondent.

LEWIS, Judge.

The petitioner-respondent, Sonia Jordi to whom it will be convenient to refer as the petitioner is the mother and guardian of Gloria Lindgren, an infant, in whose behalf she seeks letters of administration upon the estate of Homer D. Lindgren, deceased. Although the petitioner was formerly the wife of the decedent, she does not ask to administer his estate because of that fact but because she is the guardian of the only child of that marriage who claims to be the sole distributee of the decedent's estate. Surrogate's Court Act, s 118. The issues to be determined upon this appeal were tendered by the allegations in an answer and cross-petition served by the appellant, Gladys McD. Lindgren, who claims to be the decedent's widow and as such asserts a prior right under section 118 of the Surrogate's Court Act to letters of administration upon his estate.

Additional facts will define our problem. The decedent and the petitioner were married in New York State in 1925 where both were domiciled. He was then a member of the faculty of a university in the city of New York where he served from 1925 until his death in 1942. After the birth in 1926 of the daughter, Gloria Lindgren, the decedent and his wife lived apart under a formal separation agreement. On October 3, 1939, in an action instituted in the Circuit Court of Florida the decedent was granted a decree of absolute divorce from the petitioner upon grounds not recognized in this State. Two days later, on October 5, 1939, at Elkton, Maryland, he entered into a ceremonial marriage with the present appellant, Gladys McDermaid Lindgren. The marriage license issued prior to that ceremony recites that the decedent resided in the State of New York. In fact, promptly after that alleged marriage he returned to New York State where he resided until his death.

In the divorce action instituted by the decedent in Florida in 1939 service of process upon the petitioner had been made by publication. Although she did not then appear in the action, two years later on September 30, 1941 she applied to the Circuit Court of Florida for an order so amending the decree of divorce granted to the decedent in 1939 as to recite her appearance in the action, upon the ground that through inadvertence and mistake of counsel her appearance originally in the action had not been noted. Thereupon she procured an order which purported to amend nunc pro tunc the divorce decree of 1939 to include a recital of her appearance in the action and her consent to the entry of the final decree. Two months later, and prior to the death of the decedent, the petitioner married Paul Jordi.

If the decedent was survived by a wife, she would have the first right to administer his estate; if he left no wife surviving the right to administration would be in his only child in whose behalf this proceeding is instituted. Surrogate's Ct. Act, s 118. The question whether the present appellant became the decedent's wife by the marriage of October 5, 1939, depends upon the validity of the Florida divorce granted to the decedent on October 3, 1939. The determination of that question depends in turn upon whether, under the facts of this case, the courts of this jurisdiction are required to give full faith and credit to the Florida decree.

Before reaching those questions, however, we consider the appellant's challenge to the right which the petitioner asserts in behalf of the only child of the decedent's first marriage to attack the validity of the decree of the Florida court by which the child's parents are alleged to have been divorced. It is said that when both parents of the child appeared in the Florida court in the manner disclosed by the present record neither of those two parties could thereafter challenge the validity of the foreign court's decree. See Vernon v. Vernon, 288 N.Y. 503, 41 N.E.2d 792;Krause v. Krause, 282 N.Y. 355, 357, 26 N.E.2d 290; Restatement of the Law of Judgments, s 19; Restatement of the Law of Conflict of Laws, s 112. With such parental disability as a basis for her argument the appellant asserts that the child is in privity of estate with the decedent and thus is burdened with the same disability to challenge the validity of the Florida decree of divorce.

We think that under facts disclosed by this record the law does not visit upon the child the disability thus imposed upon the parents. The rights which are asserted in this proceeding are not property rights to which either parent has claimed to be entitled. There is no claim that the estate will derive special benefit or suffer special disadvantage in the appointment of either of the two present claimants to letters of administration. It may well be that the decedent or his personal representative acting in his behalf could not question the Florida decree. Hynes v. Title Guarantee & Trust Co., 273 N.Y. 612, 7 N.E.2d 719. In this proceeding, however, it is neither a right of the decedent or of his estate which is the subject of inquiry. The petitioner attacks the validity of the Florida decree in behalf of the decedent's daughter not in behalf of the decedent or of his estate or of the petitioner herself. By applying appropriate legal principles to the facts of record a choice must be made between the right, under section 118 of the Surrogate's Court Act, of the petitioner, as guardian of the decedent's only child, to administer his estate and the right, under the same statute, of the appellant who claims to be his widow. In each instance we are dealing with matters personal to the claimant; not to the decedent or his estate. As to the child they are independent rights to which she claims to be legally entitled as the sole distributee of her father's estate. Of course the child was not a party to the Florida divorce action and accordingly the judgment then entered was not conclusive upon her or upon the rights now asserted in her behalf. In these circumstances we think that as a third party she may challenge the validity of the Florida decree of 1939. See Olmsted v. Olmsted, 190 N.Y. 458, 466, 467,83 N.E. 569, 571,123 Am.St.Rep. 585, affirmed 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530, 25 L.R.A., N.S., 1292; Andrews v. Andrews, 188 U.S. 14, 39, 23 S.Ct. 237, 47 L.Ed. 366;German Savings & Loan Society v. Dormitzer, 192 U.S. 125, 128, 24 S.Ct. 221, 48 L.Ed. 373;Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357;Lefferts v. Lefferts, 263 N.Y. 131, 134, 188 N.E. 279, 280;Matter of Holmes' Estate, 291 N.Y. 261, 272, 273, 52 N.E.2d 424, 430.

The...