Kimball v. Kimball
| Decision Date | 01 May 1899 |
| Docket Number | No. 248,248 |
| Citation | 174 U.S. 158,43 L.Ed. 932,19 S.Ct. 639 |
| Parties | KIMBALL v. KIMBALL et al |
| Court | U.S. Supreme Court |
George Bell, Waldegrave Harlock, and H. W. Scott, for plaintiff in error.
Lemuel H. Arnold, for defendants in error.
This action was begun December 18, 1896, by a petition of Maude E. Kimball, claiming to be the widow of Edward C. Kimball (who resided in Brooklyn, and died there, without issue, on November 9, 1896), to the surrogate's court of the county of Kings, in the state of New York, praying that letters of administration granted by that court on November 10, 1896, to his mother and his brother-in-law, upon a petition representing that he died intestate and unmarried, be revoked, and that this petitioner be appointed administratrix.
The administrators previously appointed, being cited to show cause why the prayer of her petition should not be granted, filed an answer, denying that she was the widow of the deceased.
At the hearing in the surrogate's court, it was proved and admitted that Edward C. Kimball and the petitioner went through the ceremony of marriage at Brooklyn on June 29, 1895; that she had been married on May 12, 1885, to James L. Semon, in the city of New York; that on September 25, 1890, she commenced a suit against Semon in a court of the state of North Dakota for a divorce on the ground of his desertion; that the summons in that suit was not served upon him in North Dakota, but was served upon him in the state of New York on October 15, 1890; that on January 26, 1891, that court rendered a decree of divorce against him as upon his default; that she was living in North Dakota from June 5, 1890, to February 5, 1891; that when she brought her suit for divorce, and ever since, Semon was a resident of the state of New York; and that on December 16, 1896, that court, upon his application and after notice to her, amended the decree of divorce by striking out the statement of his default, and by stating, in lieu thereof, that he had appeared and answered in the suit. Copies of the record of the proceedings for divorce were produced, and the principal matter contested in the surrogate's court was the validity of the divorce.
The surrogate's court held that the decree of divorce and the marriage of the petitioner to the intestate were absolutely void at the time of his death, and were not rendered valid by the subsequent amendment of the decree of divorce; and by a decree dated March 8, 1897, adjudged that the petitioner was not the widow of Edward C. Kimball, nor entitled as such to letters of administration of his estate, and further adjudged that her petition be dismissed. On April 5, 1897, the petitioner appealed from that decree to the appellate division of the supreme court of the state of New York, which on June 22, 1897, affirmed the decree. In re Kimball, 18 App. Div. 320, 46 N. Y. Supp. 177. From the decree of affirmance the petitioner, on Auguat 19, 1897, appealed to the court of appeals of the state of New York, and that court, on February 4, 1898, affirmed the decree, and ordered the case to be remitted to the surrogate's court. 155 N. Y. 62, 49 N. E. 331.
The petitioner sued out this writ of error, and assigned for error that the courts of New York had not given due faith and credit to the decree of the court of North Dakota.
The writ of error was entered in this court on February 21, 1898. On March 22, 1898, the defendants in error moved to dismiss the writ of error, because of the following facts, proved by them, and admitted by the plaintiff in error, namely: On March 25, 1897, on a petition of the mother and sister of Edward C. Kimball, representing that his last will and testament, dated July 7, 1890, devising and bequeathing to them all his property, real and personal, and appointing them executrices thereof, had just been found, the surrogate's court, upon due proof of its execution and attestation, entered a decree admitting the will to probate, ordering letters testamentary to be issued to the executrices, and revoking the letters of administration which had been granted to the mother and the brother-in-law on November 10, 1896. The entry of the decree of March 25, 1897, was notified by the counsel of the present defendants in error to the counsel of the plaintiff in error on the day on which it took place.
The motion to dismiss was opposed by the plaintiff in error, upon the grounds that the judgment below involved a federal question within the jurisdiction of this court; that a dismissal of the error would leave the plaintiff in error bound by the adjudication below that she was not the widow of the deceased; that the admission of the will to probate had no bearing on the question before this court; and that the defendants in error had been guilty of laches in not sooner making a motion to dismiss.
The consideration of the motion to dismiss the writ of error was postponed until the hearing upon the merits, and now presents itself at the threshold.
The rule which must govern the disposition of this motion has been often stated and acted on by this court.
In a comparatively recent case, pending a writ of error to reverse a judgment for a railroad corporation in an action against it by a state to recover sums of money for taxes, it was shown that the defendant had made a tender of those sums to the state, and a deposit of them in a bank to its credit, which by statute had the...
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