Morton Estate

• Decision Date: 18 December 1969
• Docket Number: 5683 of 1967
• Parties: Morton Estate
• Court: Pennsylvania Commonwealth Court

49 Pa. D. & C.2d 661

Morton Estate

No. 5683 of 1967

Common Pleas Court of Allegheny County, Pennsylvania, Orphans Court Division

December 18, 1969

Petition to set aside election to take against will.

Frank E. Coho and Thomas P. Shearer, for petitioner.

James M. Houston and John D. Houston 2nd, Houston, Cooper, Speer & German, for respondent.

Charles F. McKenna, for guardian ad litem.

Roy Thomas Clark, and Kenney, Stevens , Clark & Semple, for administrator c.t.a.

OPINION

HAY, J.

This proceeding comes before this court on the petition of Edith E. Collins, a/k/a Edith C. Morton, hereinafter referred to as the " petitioner," to vacate the election to take against the will of William Alfred Morton, deceased, hereinafter referred to as " Morton," filed by Mollie E. Morton, hereinafter referred to as " Mollie."

Morton died on December 24, 1967, leaving a holographic will dated April 1, 1966, which was duly probated in the office of the Register of Wills of Allegheny County at no. 5683 of 1967, the Union National Bank of Pittsburgh being appointed administrator c. t. a.

On December 20, 1968, Mollie filed notice of her election to take against Morton's will in the Orphans' Court Division of the Court of Common Pleas of Allegheny County. Prior to filing the petition to vacate Mollie's election to take against Morton's will, petitioner had also filed two other petitions: First, to extend the time for her as alleged surviving spouse to file her election to take against Morton's will, and second, a petition for the family exemption. No action has been taken by this court on either of these petitions pending the disposition of the petition to vacate Mollie's election to take against Morton's will....

DISCUSSION

On October 30, 1919, Mollie and Morton were married in Bellaire Ohio, after which they made their home at 1512 Westfield Avenue, Beechview, Pa., three sons being born of the aforesaid marriage. In 1930, while on a business trip to Europe, Morton met one Hilda Snitkin, a divorcee, and from that time on this case takes on aspects which one might expect to find in a Victorian novel. Morton, after meeting Hilda, toured Europe with her and upon his return never again rejoined Mollie at their home on Westfield Avenue. A bitter and disappointed Mollie then secured the services of James Millholland, Esq., a former judge of this court, to advise her of her marital rights and as to whether or not she should seek a divorce. Judge Millholland advised Mollie to do nothing, since it was his opinion that Morton would never be able to procure a divorce from Mollie which would be recognized in this Commonwealth. In May of 1934, Morton apparently filed a divorce action against Mollie in Juarez, Mexico, wherein a decree of divorce was entered on June 13, 1934. This Mexican proceeding was neither opposed by Mollie nor did she enter any appearance, nor was an appearance entered for her. After the decree of divorce had been granted by the Mexican court, Morton apparently went through a marriage ceremony of sorts with Hilda Snitkin in Hoboken, N. J., and thereafter they returned to Pittsburgh and lived in Mt. Lebanon until Hilda's death in August 1953.

After Morton left his home in Beechview, which he had shared with Mollie in 1931, he had little or no contact with her with the exception of checks sent to her each January for her support and that of his children. During the later years of Morton's life, his annual checks were in the amount of $ 3,000, and continued long after his sons had become men and left their home which they had shared with their mother in Beechview.

The initial issue, therefore, facing this court is whether or not Morton's Mexican divorce was a valid one that would be recognized in this Commonwealth. In Commonwealth ex rel. Thompson v. Yarnell, 313 Pa. 244 (1933), Mr. Justice Maxey, speaking for the Supreme Court of Pennsylvania, stated, at page 251:

" It is true that a foreign divorce may be attacked collaterally by the defendant spouse where his or her rights are involved. It may also be attacked by persons claiming under the defendant spouse. The right to impeach collaterally a decree of divorce made in another state by showing fraud or want of jurisdiction has been frequently recognized. See German Savings & Loan Society v. Dormitzer, 192 U.S. 125, 128; Andrews v. Andrews, 188 U.S. 14, 39; 19 C.J., page 375, sections 844, 845; Rex v. Brinkley, 14 Ont. L.R. 434, and Rex v. Lolley, 168 English Reports 779. Third persons whose rights are concerned may under certain circumstances attack a divorce collaterally. See Adams v. Adams, 154 Mass. 290, 28 N.E. 260, and Hollingshead v. Hollingshead (NJ.), 110 A. 19, syllabus 3.

" However, in order to invalidate the Mexican divorce decree it would have to be shown not only that the then respondent (the first Mrs. Yarnell) was not in Mexico at the time of the proceedings but that she was never properly served with process, was not represented by counsel, and that the cause of action did not arise in the foreign jurisdiction. See Grossman's Est. (No. 1), 263 Pa. 139, 106 A. 86; Duncan v. Duncan, 265 Pa. 464, 109 A. 220, and Haddock v. Haddock, 201 U.S. 562."

See also Commonwealth ex rel. v. Manzi, 120 Pa.Super 360 (1936); Commonwealth v. Doughty, 187 Pa.Super 499 (1958); Commonwealth ex rel. Thompson v. Yarnell, 313 Pa. 244 (1933); and Commonwealth ex rel. Poet v. Poet, 89 Dauph. 250 (1968).

Petitioner relies heavily upon the case of Franzen v. E. I. DuPont deNemours and Co., Inc., 146 F.2d 837, for the proposition that full faith and credit must be given in each State to the public acts, records and judicial proceedings in another State. Admittedly, the validity of a marriage is to be determined by the place where the marriage is contracted and if valid there according to the law of the State where it is contracted, a marriage is regarded as being valid in every other State: Loughran v. Loughran, 292 U.S. 216. this preposition this court is not in dispute. However, in the case presently before us, we are not concerned with a marriage contracted in one State being valid in another State, but with the proposition of a divorce being granted in one country and being recognized in another. In Perrin v. Perrin, 408 F.2d 107 (1969), also relied upon by petitioner, the court was confronted with a similar problem, and there the court stated:

" It is true, as the plaintiff now argues, that domicile is regarded as the basis for jurisdiction to grant a divorce in the United States. Granville-Smith v. Granville-Smith, 1955, 349 U.S. 1, 75 S.Ct. 553, 99 L.Ed. 773. It is likewise true that a divorce decree may be collaterally attacked for lack of domiciliary jurisdiction, Williams v. North Carolina, 1945, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, if the defendant was not personally served and did not appear. But it is equally well settled that if the defendant was personally served or did actually appear in the action, he is estopped from impeaching the resulting divorce decree, whether the domiciliary jurisdiction was contested by the defendant, Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429,1 A.L.R. 2d 1355, or was admitted by him, Coe v. Coe, 1948, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R. 2d 1376.

" The Sherrer and Coe cases involved divorce decrees which had been entered in Florida and Nevada, respectively, and involved the application thereto of the full faith and credit clause of the federal Constitution. Here, however, we are dealing with a decree of a foreign state as to which the principles of comity, rather than full faith and credit, apply. Ordinarily, the recognition in the United States of such a foreign decree will depend upon whether at least one of the spouses was domiciled in the foreign state when the decree of divorce was rendered. Certainly 'mail order' divorce decrees in which neither spouse has appeared personally in the foreign jurisdiction are not recognized here. And this appears to be equally true in the case of ex parte divorce decrees in which an absent defendant is served only extra territorially or constructively and does not actually appear or file an answer in the action." (Italics supplied.)

It must also be noted, however, that Perrin and Rosenstiel v. Rosenstiel, 16 N.Y.2d 64 (1965), involved bilateral divorce proceedings wherein plaintiff was personally present in the foreign State and appeared in the foreign court and defendant appeared in that court by counsel and filed a consenting answer. The voluntary appearance of the other spouse in the foreign court by an attorney tended to give support to the proposition that that court had acquired jurisdiction over the marriage as a legal entity, as it is almost universally accepted in all jurisdictions that submission under judicial authority would give a court jurisdiction over the parties before it. However, inasmuch as the instant case does not involve a bilateral divorce and is readily distinguishable, therefore, from the Perrin and Rosensteil cases, it need not be discussed here any further.

In Commonwealth ex rel. v. Manzi, 120 Pa.Super 360 (1936), a wife who had been deserted by her husband was seeking support for her two children. At the time of the hearing, defendant appeared and filed an answer in which he alleged that petitioner was no longer his wife, as he had, on December 21, 1934, obtained a decree of absolute divorce from her. In a subsequent hearing, he produced a certificate and record of a final divorce decree rendered in his favor by the First Civil Court, Bravos District, State of Chihuahua, Mexican Republic.

Petitioner-wife testified that she had not been in Mexico during the years 1933 1934; that she had not...