In re Vetter's Estate

• Decision Date: 30 June 1932
• Docket Number: 192
• Citation: 162 A. 303,308 Pa. 447
• Parties: Vetter's Estate
• Court: Pennsylvania Supreme Court

162 A. 303

308 Pa. 447

Vetter's Estate

No. 192

Supreme Court of Pennsylvania

June 30, 1932

Argued April 21, 1932

Appeal, No. 192, Jan. T., 1932, by Rose Van Dusen, from the definitive decree of O.C. of Philadelphia Co., Jan. T., 1927 No. 460, dismissing exceptions to auditor's report. Affirmed.

Exceptions to report of Ira J. Williams, Esq., auditor.

The opinion of the Supreme Court states the facts.

Exceptions dismissed in opinion by SINKLER, J.

Rose Van Dusen appealed.

Error assigned, inter alia, was decree, quoting it.

The decree of the court below is affirmed.

Earl W Thompson, with him John M. Abbott, for appellant. -- From the final decree of divorce obtained in the Nevada court by the appellant no appeal has been taken and it follows that the full faith and credit clause of the federal Constitution comes into operation and the recognition of the decree in the courts of Pennsylvania becomes a constitutional right: Laing v. Rigney, 160 U.S. 531; Hampton v. McConnel, 3 Wheaton 234; Sistare v. Sistare, 218 U.S. 1; Barber v. Barber, 21 Howard 582; Andrews v. Andrews, 188 U.S. 14.

The decree of divorce granted to the appellant by the Nevada court is regular on its face and cannot be impeached by the trustees and guardian ad litem in a collateral proceeding here in the Orphans' Court of Philadelphia County: Bank v. Poore, 231 Pa. 362; In re Gottesfeld, 245 Pa. 314; Metzger's Est., 242 Pa. 69; McDonald's Est., 268 Pa. 486.

It was the kind of divorce intended by the testator in the codicil to his will and it satisfies the condition therein to terminate the trust: Arnold v. Muhlenberg College, 227 Pa. 321; Holbrook's Est., 213 Pa. 93.

R. W. Archbald, Jr., with him Frederick L. Breitinger, for appellees. -- The alleged residence of Rose Van Dusen in Nevada was not in good faith, and was no residence at all, and the Nevada court had no jurisdiction of the subject-matter, i.e., her marital status. The divorce decree was, therefore, void: Halpine v. Halpine, 52 Pa.Super. 80; Lyon v. Lyon, 13 Pa. Dist. R. 623; Guthrie v. Lowry, 84 Pa. 533; Price v. Schaeffer, 161 Pa. 530; Noble v. Thompson Oil Co., 79 Pa. 354; Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight and Coke Co., 19 Wall. 58.

The Nevada divorce was collusive and a fraud upon the testator's will, the remaindermen and the orphans' court.

A familiar instance is found in the case of collusive judgments in fraud of creditors which are open to collateral attack by the persons defrauded: Appeal of Second National Bank of Titusville, 85 Pa. 528; Palmer v. Gilmore, 148 Pa. 48; Otterson v. Middleton, 102 Pa. 78; Bole v. Belden Transmission Co., 239 Pa. 1.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE KEPHART:

Casper Vetter died in 1925, and by his will devised one-third of his residuary estate to his sons, one-third to one daughter, and the remaining one-third in trust to pay the income to his other daughter, Rose Vetter, for life, with remainder to her children; but, if Rose Vetter's husband died, or "in case of her divorce from him," "The principal of the trust estate . . . shall be paid to her absolutely and in fee simple."

Rose Vetter married Charles Van Dusen of Colorado in 1914. They lived in tat state seven years and then moved to Los Angeles, where they have since been domiciled. They have two minor children. In December, 1928, Rose Van Dusen, claiming a divorce by decree of a Nevada court, petitioned the Orphans' Court of Philadelphia County for a citation on the trustees to file an account. In the petition she declared that because of the divorce she was entitled to the estate held in trust. On this petition, the orphans' court appointed a guardian ad litem for the children, and their guardian, together with the trustees, filed answers. The proceeding was referred to a master, who found that the Nevada court had no jurisdiction to grant a divorce to the petitioner since her residence in the State of Nevada was solely for the purpose of obtaining the divorce.

After some intermediate proceedings, the lower court affirmed the master's finding on jurisdiction, but also held that it was competent to determine whether fraud was practiced in the proceedings brought in this State to terminate the trust. It found, and its finding is amply supported by the uncontradicted evidence, that the conduct of appellant was "an attempt to commit a bare-faced fraud on this court." It stated, "We are satisfied that the divorce was obtained solely for the purpose of terminating the trust. This court will not countenance such a proceeding, nor will it lend its aid to defeat the manifest intention of the testator through reliance upon a proceeding brought solely for the purpose of defeating such intention." The petition was dismissed.

The argument of appellant in this court vigorously attacks the finding of the master and the court below that the Nevada court was without jurisdiction to grant a divorce. She points out that all the jurisdictional questions, particularly the ones relied on by the court below to defeat that jurisdiction, were submitted to and determined as questions of fact by the Nevada court, and that the case of Andrews v. Andrews, 188 U.S. 14, strongly relied on, would not control for the reason that all there decided was that the announced public policy of the State of Massachusetts would be enforced, and that therefore, under the "full faith and credit" clause of the federal Constitution, the decree of the Nevada court should be recognized in this proceeding, and cannot be attacked in this collateral matter.

We need not discuss this interesting question, for there is another ground on which the decree of the court below may be affirmed. The testimony amply sustains the conclusion that the acts of appellant and her husband were attempts to perpetrate a fraud on the court and the remaindermen under Casper Vetter's will.

Rose Van Dusen was dissatisfied with her father's will; she consulted counsel; and thereafter told several persons she and her husband had been advised to obtain a divorce; that they intended to do this and be remarried after her share of the estate had been secured. As stated by the court below "one witness testified that she had known petitioner for many years, since petitioner was a little girl; and she had a talk with her in 1926, after testator's death, with regard to the will; petitioner thought the will very unfair and said she 'knew how to get around the will so that she could come into the money. . . . I can get a divorce from Charles and after I come into my part of the will I will marry him again.'" The plan was outlined for securing the divorce.

The purpose of the acts on which the divorce proceeding hinged was not to secure a divorce which would separate the parties forever as divorces usually do, but it was simply a means by which the estate could be obtained. The divorce was a necessary incident in a concerted plan to frustrate the will. In considering the effect of the acts of appellant and her husband, as they bear on the proceeding to terminate the trust, all steps...