Old Colony Trust Co. v. Porter
| Decision Date | 16 September 1949 |
| Citation | 88 N.E.2d 135,324 Mass. 581 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | OLD COLONY TRUST COMPANY & another v. CHARLES E. PORTER(and a companion case [1]). |
February 10, 1949.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.
Judgment. Jurisdiction, Raising question of jurisdiction.
Marriage and Divorce, Decree, Revocation of decree. Probate Court, Decree.
A stranger to a divorce proceeding wherein a decree of divorce had become absolute, whose rights under the will of a woman would be affected by revocation of the will through a marriage subsequently entered into between the woman and the libellant if the divorce and hence the marriage were valid, was not entitled to make a direct attack on the decree of divorce by a petition, filed in the divorce proceeding, for revocation of the decree on the ground that the court had no jurisdiction of that proceeding, where an adequate remedy was open to the petitioner by collateral attack on the decree in another proceeding.
In a proceeding for probate of the will of a woman who, after the making of the will, had entered into a marriage with a man divorced by a decree of a Probate Court, the proponent of the will, who, as well as persons interested thereunder, had been strangers to the divorce proceeding but would be injured through revocation of the will if the divorce and hence the marriage were valid, was entitled to attack the decree of divorce collaterally by a petition to strike out the appearance of the purported husband of the testatrix in opposition to the probate of the will and thereunder showing that the divorce court had had no jurisdiction of the divorce proceeding; it was immaterial that the interests of the proponent and persons represented by him were not adversely affected at the time of the entry of the decree of divorce.
The mere fact that a marriage of one previously divorced in Massachusetts took place in New York would not prevent its being shown collaterally in a subsequent proceeding in Massachusetts that the decree of divorce was void for want of jurisdiction of the court granting it and that hence the marriage also was invalid.
PETITIONS, filed in the Probate Court for the county of Suffolk on November 12 1947.
The cases were heard by Mahoney, J.
N. Leonard, (J.
T. Hayes with him,) for Old Colony Trust Company.
P. B. Buzzell, (L.
M. Lombard & C.
M. Ewing with him,) for Simonds, guardian ad litem.
E. O. Proctor, (E.
M. Graham, & A Sigel with him,) for Charles E. Porter.
F. T. Doyle, (R.
S. McCabe with him,) for Doyle, guardian ad litem.
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, Sections 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, Section 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, Section 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. 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, and in Brokaw v. Brokaw, 99 Ind.App. 385, it was held that such an attack could not be made.
It is true that in Tucker v. Fisk, 154 Mass. 574 , Phillips v Chase, 203 Mass. 556, and Raymond v. Cooke, 226 Mass. 326 , 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, Section 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 proceeding, 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...
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