Old Colony Trust Co. v. Porter

• Decision Date: 16 September 1949
• Parties: OLD COLONY TRUST CO. et al. v. PORTER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 581

88 N.E.2d 135

OLD COLONY TRUST CO. et al.

v.PORTER (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 10, 1949.

Decided Sept. 16, 1949.

Petitions by the Old Colony Trust Company, executor, and another, against Charles E. Porter and others to vacate a decree of divorce granted defendant on the ground that he had not resided within the Commonwealth for the statutory five year period. Petition by the Old Colony Trust Company for the allowance of alleged will of Virginia Fildes Simonds wherein a petition was filed to strike out the appearance of Charles E. Porter.

The Probate Court, Suffolk County, J. V. Mahoney, J., sustained a demurrer to the first petition and denied the second petition and the petitioners appeal.

The Supreme Judicial Court, Qua C. J., affirmed the decree in the first case and reversed the decree in the second case holding that the divorce decree could be attacked collaterally for want of jurisdiction by persons not parties to it where their interests under a will of the second wife would be destroyed if the decrees were held valid.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and SPALDING, JJ.

N. Leonard, Boston, J. T. Hayes, Boston, for Old Colony Trust Co. and another.

P. B. Buzzell, Boston, Laurence M. Lombard, Boston, and C. M. Ewing, Boston, for Daniel Simonds.

E. O. Proctor, Boston, E. E. Fuchs, J. N. Graham and A. Sigel, Boston, for Charles E. Porter.

F. T. Doyle, Boston, R. S. McCabe, Boston, for guardian ad litem.

QUA, Chief Justice.

The first case is a petition filed in the Probate Court for the county of Suffolk on November 12, 1947, by Old Colony Trust Company describing itself as the executor and trustee named in the will of Virginia Fildes Simonds, late of Boston, and by Daniel Simonds, who purports to appear in his own name but as next friend for his minor children, not named in the petition, who are alleged to be beneficiaries under the will. The petition bears the caption of a libel for divorce previously filed in the same Probate Court by Charles E. Porter against Gertrude E. Porter. The petition purports to be filed in that divorce proceeding and prays that a decree for divorce which had been granted therein to Charles E. Porter against Gertrude E. Porter and which had already become absolute be vacated and set aside, and that the libel be dismissed. The grounds of the petition are that Porter and his wife were married and lived as husband and wife in the State of New York; that Gertrude E. Porter has continued to reside there; that the libellant, Charles E. Porter, had not lived in this Commonwealth for five years last preceding the filing of the libel, so that the Probate Court under G.L.(Ter.Ed.) c. 208, §§ 4 and 5, had no jurisdiction to grant the divorce but was induced to grant it by the fraud of Charles E. Porter in misrepresenting the facts as to his residence; that after the purported granting of the divorce Charles E. Porter married Virginia Fildes Simonds; that this marriage depends for its validity upon the purported divorce; that if the marriage was valid it would have the effect under G.L.(Ter.Ed.) c. 191, § 9, of revoking the will of Virginia Fildes Simonds; and that if the decree of divorce is not vacated, Porter's fraud upon the court will adversely affect the interests of the petitioners under the will.

The judge sustained a demurrer to the petition, refused to allow an amendment which would not have changed its essential nature, and dismissed the petition. The case is here on appeal from these decrees. From a suggestion of death on file it appears that Gertrude E. Porter died on the same day on which the demurrer was sustained.

The second case is a petition filed in the same Probate Court, also on November 12, 1947, by Old Colony Trust Company for proof and allowance of the alleged will of Virginia Fildes Simonds. In this proceeding Old Colony Trust Company filed on March 5, 1948, a petition to strike out the appearance of Charles E. Porter in opposition to the allowance of the will on the ground that the marriage between Porter and Virginia Fildes Simonds was void; that Porter is not the surviving husband of Virginia Fildes Simonds; and that he has no interest in her estate and has no standing to appear as a contestant.

At the hearing on the petition to strike out the appearance of Charles E. Porter it was shown that in the libel for divorce the libellee, Gertrude E. Porter, appeared by counsel and filed an application for an allowance, and that she filed a cross-libel, that on February 21, 1947, a decree nisi was entered in favor of Charles E. Porter, and the cross-libel was dismissed; and that on September 11, 1947, the decree having become absolute, Charles E. Porter went through a marriage ceremony with Virginia Fildes Simonds in the State of New York. She died two days later, leaving the alleged will, which was made in 1942, and in which the children of Daniel Simonds were named as beneficiaries. The petitioner offered substantial evidence tending to prove, in effect, that at the hearing on the divorce libel Mrs. Porter's attorney, in pursuance of his instructions, consented to the dismissal of the cross-libel, received $3,300 from Charles E. Porter's attorney in exchange for a release signed by Mrs. Porter running to her husband, and took no further part in the case; that the allegations in Charles E. Porter's libel were not true; that the Porters had never lived as husband and wife in this Commonwealth; and that Charles E. Porter had not lived in this Commonwealth for five years last preceding the filing of the libel. The judge, however, refused to permit collateral attack upon the decree of divorce and excluded the evidence. He denied the petition to strike out the appearance of Charles E. Porter and disallowed the will on the ground that it had been revoked by the marriage of the testatrix to Porter, except so much of it as was made in the exercise of powers of appointment not involved in this case. G.L.(Ter.Ed.) c. 191, § 9. The case is here by appeal.

1. In our opinion the decrees in the first case ought not to be disturbed in the circumstances presented. It would be going a long way to permit persons who were not parties to a divorce proceeding to make a direct attack upon a decree for divorce which has already become absolute by a petition to vacate it altogether for want of jurisdiction, when, as hereinafter appears, another remedy is available which will meet the needs of the petitioners without in any other respect disturbing the status apparently established by the decree. The death of one of the parties to the divorce, although after the petition was filed and on the day the demurrer to it was sustained, adds emphasis to this statement. See Rawson v. Rawson, 156 Mass. 578, 580, 31 N.E. 653. We have been referred to no decision, and we have seen none, in which direct attack upon a divorce decree, by a person not a party to it in circumstances comparable to these, was allowed. In Tyler v. Aspinwall, 73 Conn. 493, 47 A. 755,54 A.L.R. 758, and in Brokaw v. Brokaw, 99 Ind.App. 385, 192 N.E. 728, it was held that such an attack could not be made.

It is true that in Tucker v. Fisk, 154 Mass. 574, 28 N.E. 1051,Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, 30 L.R.A.,N.S., 159, 17 Ann.Cas. 554, and Raymond v. Cooke, 226 Mass. 326, 115 N.E. 423, persons not parties to decrees for adoption were allowed to maintain petitions to vacate the decrees for fraud after the death of the adopting party. But in each of these instances the petition was grounded upon fraud not going to the jurisdiction but yet directed both against the court and against the persons from whom the petitioners derived their interests. And in both the Tucker and the Phillips cases, which are cited as authority for the Raymond case, stress was laid upon the argument that, if the decree for adoption could not be vacated, there would be no remedy whatever for the fraud committed. It would seem that the view of the court in those cases was that if the adoptions stood, the persons adopted would necessarily succeed to the property of the adopting parents in accordance with what is now G.L.(Ter.Ed.) c. 210, § 7. It is not true in the present instance that a remedy can be had only by vacating the decree of divorce, as we shall see presently. We do not overlook possible intimations in the Tucker and Phillips cases that a decree for divorce as well as a decree for adoption might in a proper case be vacated at the instance of one not a party to the original proceedings, and if the circumstances were otherwise similar to those in the Tucker and Phillips cases, and if there were no other remedy available, we might be required to give serious consideration to this suggestion. But we are of opinion for the reasons already stated that the present case is not governed by the Tucker, Phillips, and Raymond cases.

2. We have come to the conclusion that there was error in the second case in the ruling of the judge that the decree of divorce could not attacked collaterally by Old Colony Trust Company on its petition to strike out the appearance of Charles E. Porter and in the judge's refusal to hear the evidence offered by the petitioner tending to show that Charles E. Porter had not lived in this Commonwealth for the requisite time prior to the filing of his libel.

It is plain that the requirement of G.L.(Ter.Ed.) c. 208, § 5, of five years residence in this Commonwealth last preceding the filing of the libel is a jurisdictional requirement in cases to which it applies, and that if there has not in truth been such residence the court has no jurisdiction to act. Field v. Field, 236 Mass. 256, 128 N.E. 9;Hayes v. Hayes, 256 Mass. 97, 152 N.E. 91;Kisley v. Kisley, 322 Mass. 676, 79 N.E.2d 287. No contention is made to the contrary.

Starting from this point, if a statutory requirement of a jurisdictional fact means anything, sound reason would...