Thorn's Estate

• Decision Date: 13 July 1945
• Docket Number: 586
• Citation: Thorn's Estate, 53 Pa. D. & C. 659 (Pa. Commw. Ct. 1945)
• Parties: Thorn's Estate
• Court: Pennsylvania Commonwealth Court

53 Pa. D. & C. 659

Thorn's Estate

No. 586

Common Pleas Court of Philadelphia County, Pennsylvania, Orphans Division

July 13, 1945

April term, 1887

Exceptions to adjudication.

Leslie M. Swope, Robert W. Skinner, and Roland Flear, for exceptants.

Gilbert W. Oswald, of SchnaderKenworthey, Segal & Lewis, contra.

Before Van Dusen, P. J., Sinkler, Klein, Bolger, Ladner, and Hunter, JJ.

OPINION

The following statement of facts appears from the adjudication of

SINKLER, J., auditing judge.

George W. Thorn died April 25, 1886, and the trust arises under his will, by which he bequeathed his residuary estate in trust, to be held as shares, and the income therefrom to be paid to his sisters and nephews and nieces for their respective lives.The provisions of the trust are set forth in the petition for distribution and need not be repeated here.

The trust continues, and will not terminate until the death of Mary G. Skinner, who is the last survivor of the primary life tenants.The reason for filing the account, as stated in the petition for distribution, is the death of George Anderson Bullock, Jr., on December 8, 1943.He had been receiving a portion of the income under the trust as the issue of a deceased niece, Anna Bullock, who had been one of the primary life tenants named by decedent.

Prior to his death, the said George Anderson Bullock, Jr., Mary G. Skinner, a niece, and George W. T. Snare, issue of John T. Snare, a deceased nephew, had been receiving the entire income from the trust.In the petition for distribution the question is raised concerning the distribution of the one-third share of the income which had been received by George Anderson Bullock, Jr.

By paragraph 16 (3) of decedent's will, it is provided that on the death of a nephew or niece the share of income which such nephew or niece, so dying, would have received, if living, should be paid to his or her issue.It was by virtue of this provision that George A. Bullock had been receiving the income up until his death, and had he lived until the termination of the trust this provision would have entitled him to receive the income until that date.

By paragraph 16(4), it is provided that on the death of a nephew or niece, not survived by issue, the income share of the nephew or niece is to be distributed as part of the residuary trust estate.If this provision is applicable to the instant case, the share of income heretofore paid to George A. Bullock(also known as George Anderson Bullock, Jr.) would be divided equally among those now receiving the remaining income from the trust.

The determination of the distribution of income turns upon the status of the children of George A. Bullock.

In 1895, George A. Bullock was married in Philadelphia to one Anna Hooley.Sometime thereafter they separated, and he went to live with one Nevada Omlor in Cleveland.While in Cleveland, Nevada Omlor's sister, Margaret, came at her invitation to live with them, and later moved with them to Toledo.Between 1905 and 1909Nevada Omlor had three children apparently by George A. Bullock, although no claim or proof of this is made.In 1907Nevada Omlor left the household, and George A. Bullock continued to live with Margaret Omlor.Between 1909 and 1923, Margaret Omlor bore him nine children.Seven of these now survive and are hereinafter described as the claimants.

In 1920George A. Bullock and Margaret Omlor, and their children, moved to Elkhart County, Indiana, which remained the domicile of Bullock at all times thereafter until his death in 1943.During all this period they lived together as a family group.

On March 8, 1929, George A. Bullock was awarded an absolute divorce from Anna H. Bullock by the Circuit Court of Elkhart County, Indiana, service being made upon defendant as a nonresident by publication.

On May 20, 1929, George A. Bullock and Margaret Omlor were married in Warsaw, Ind.

Anna Hooley Bullock died in 1938, without leaving a surviving child, her only child having died in 1910.

At the time of the divorce in 1929, George A. Bullock and his children by Margaret Omlor were domiciled in Elkhart County, Indiana.

No claim is advanced on behalf of the children of George A. Bullock by Nevada Omlor.

The seven surviving children of George A. Bullock by Margaret Omlor, now Bullock, claim the right to receive the income from the share previously held for their father, on the ground that by the marriage of their parents they were legitimated, and that they thereafter came within the class of " issue" of Anna Bullock, the mother of their father.This claim is opposed by Mary G. Skinner and her descendants, hereinafter called the contestants, who contend that the divorce of George A. Bullock from Anna Bullock was invalid, and therefore the marriage to Margaret Omlor was invalid, and that, irrespective of this, the subsequent marriage of George Bullock to Margaret Omlor did not legitimate his children by her.

Considering first the validity of the Indiana divorce: Bullock was domiciled in Elkhart County, Indiana, when the divorce was obtained.The fact that his wife was a nonresident and that she was served by publication only does not make the Indiana divorce invalid nor deprive it of the right to receive full faith and credit in the courts of this State: Williams et al. v. North Carolina,317 U.S. 287(1942);Haddock v. Haddock,201 U.S. 562(1906);see alsoNixon v. Nixon,329 Pa. 256(1938);Commonwealth ex rel. Cronhardt v. Cronhardt,127 Pa.Super 501(1937).

In the first brief filed on behalf of contestants, it is contended that Bullock failed to comply with the Indiana statute, 2 Burns Indiana Statutes 1933, § 3-1206, relating to the service of a nonresident defendant in actions of divorce.It is to be noted, however, that the statute cited by contestants was inapplicable to the Bullock divorce proceedings.Burns Indiana Statutes sets forth the statute relating to service as last amended by the Acts of 1929 and 1931.Neither of these acts was in force when the Bullock divorce action was begun nor when the final decree was entered.The Act of 1929 was approved March 14, 1929, six days after the final decree of divorce was entered.The law in force when the Bullock action was begun and when it was completed was the Act of March 13, 1879, Indiana Laws 124.

The Act of 1879 provided that " If it shall appear by the affidavit of a disinterested person that the defendant is not a resident of this State, the clerk shall give notice of the pendency of such petition by publication..." but before such notice is given the plaintiff is required to file an affidavit, " stating therein the residence of the defendant, if such residence be known to the plaintiff, and if such residence be unknown to the plaintiff, such affidavit shall so state; and in case such affidavit state the residence of the defendant, the clerk shall forward, by mail, to such defendant the number of the paper containing such notice, with the notice marked."

It is claimed by contestants that the decree of divorce may be attacked in this State on the ground of fraud.The alleged fraud is based on the assertion that Bullock knew the residence of his wife when he filed the statutory affidavit in the divorce action and stated therein that her address was unknown.

It is also stressed that there was fraud upon the court in that it is claimed that the averments made in Bullock's initial pleading in the divorce action were false, when the wife was charged with having deserted him.The question whether the averments relating to the merits of the divorce action are true or false is not now open to consideration.To permit a foreign judgment to be attacked on the ground that the judgment was obtained on the basis of perjured testimony or false statements or pleadings, would make every foreign judgment susceptible to collateral attack.In addition to this result, which is so undesirable from the standpoint of the administration of justice, the absurd result would be obtained that a judgment which could not be attacked within the State where it was rendered, because of the time for appeal or review having expired -- Friebe v. Elder,181 Ind. 597(1914) -- would nevertheless be subject to attack in every other State on the ground that it was based upon false statements.Because of this, it is concluded that false statements relating only to the merits of the case do not come within the rule that a foreign judgment may be attacked for fraud, and the judgment, as jurisdiction existed to render it, cannot be attacked in another State: Milliken et al. v. Meyer, Admx.,311 U.S. 457;Fauntleroy v. Lum,210 U.S. 230;Roche v. McDonald,275 U.S. 449.

This is particularly true where, as here, the record of the Indiana divorce action contains an express finding of the truth of the averments made by Bullock.The record of the Indiana divorce shows that upon the failure of defendant to appear in the proceedings the local prosecuting attorney was directed by the court to appear on her behalf.The record shows that he filed a general denial on her behalf.The record of the Indiana proceedings continues:

" ... and this cause being at issue, the same is now submitted to the court for trial, findings, judgment and decree.The court having heard the evidence adduced and being well and sufficiently advised in the premises, finds for the plaintiff that the material allegations in his complaint contained are true and proven; that the bonds of matrimony heretofore subsisting between said plaintiff and said defendant should be annulled and set aside and that the said plaintiff is entitled to a decree of divorce from the said defendant."

The record then concludes:

" It is therefore concluded, ordered,...