Kerr v. . Kerr

No question was made on the hearing, but that the letters granted to the appellant, were granted upon the representations made in the petition presented by her to the surrogate. In that petition, she stated that she was the *Page 274 lawful wife of said Richard E. Kerr at the time of his death, and, then, his lawful widow. It was clearly shown that she had good reason for so believing and stating; the marriage ceremony had been duly performed between her and the deceased; they had lived together as man and wife for over seven months; there were no obstacles to such a marriage on her part, and she knew of none on his. Still this marriage was illegal and void, because, as the proof showed, he had another wife living. This fact was sought to be overcome, first, by evidence that said former wife had a former husband living at the time of her marriage with said intestate; and second, by proof of a divorce on the part of her husband, from such former wife, previous to said last marriage. A former husband of said respondent was proved to be living at and after her marriage with the intestate; but this fact was met and overcome by a judgment of divorce, regular and valid between said respondent and her said former husband, previous to her marriage with said intestate. The evidence to establish a divorce between said respondent and said intestate, was an exemplified copy of a judgment record of the Circuit Court of Floyd county, State of Indiana. The unverified complaint asserts that the plaintiff therein, Richard Kerr, was then, July 20th, 1866, and for more than a year then last past had been a bona fide citizen of the State of Indiana, and a resident of Floyd county. The laws of the State of Indiana require the petitioner, or plaintiff, to have been a bona fide resident of the State for one year previous to filing his bill for a divorce. The proof was ample to show, and did show, that from 1862, up to the time of his death in 1867, the said intestate was a citizen and resident of the State of New York; and hence the court in Indiana had no jurisdiction to entertain proceedings in his favor for a divorce against his wife, then a resident of this State. Again, this record did not show any service of process, or notice of said proceeding on the defendant therein; but it did show that a firm, Howd Weir, describing themselves *Page 275 as attorneys (but of which there was no proof), did appear and answer for her. But the proof taken showed affirmatively, that no process in said action, or notice of the same, had ever been served on her; that she had no knowledge of said action, and never, either directly, or indirectly, authorized said attorneys, or any other attorney, or persons, to appear or answer for her in said action or proceeding. That being so, the court had no jurisdiction of the person of the defendant, nor authority to proceed and grant a judgment against her. It was insisted, that a foreign judgment could not be inquired into collaterally, or impeached by parol evidence. But the judgment of a court of a sister State has no binding effect in this State, unless the court had jurisdiction of the subject-matter, and of the persons of the parties. Want of jurisdiction is a matter which may always be interposed against a judgment when sought to be enforced, or when any benefit is claimed for it; the want of jurisdiction, either of the subject-matter, or of the person of either party, renders a judgment a mere nullity. (Berdan v. Fitch, 15 J.R., 121;Andrews v. Montgomery, 19 J.R., 162; Shumway v. Stillman, 3 Cow., 372; Shelton v. Parry, 6 How., 163, 186.) It was said in Noyes v. Butler (6 Barb., 613), "the Constitution of the United States, which declares that full faith and credit shall be given in each State to the judicial proceedings of every other State; and the acts of congress, which declares that the judgments of the State courts shall have the same faith and credit in other States, as they have in the State where they are rendered, do not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered; nor an inquiry into the rights of the State to exercise authority over the parties, or the subject-matter; nor an inquiry whether the judgment is founded on, or impeachable for fraud; and that such a judgment may be inquired into, although the record states facts, giving the court jurisdiction. Such record is never conclusive as to recitals, or statements of jurisdiction." (5 Wend., 158; 6 Wend., 454.) Therefore, such proof being admissible, and the evidence given in *Page 276 this case having clearly shown a want of jurisdiction in the court to entertain the proceeding, and render judgment, the judgment record produced on the hearing was properly held, as not establishing a divorce of the intestate from the respondent herein, previous to his pretended marriage with the appellant. Upon the proofs, therefore, the respondent was clearly shown to have been the lawful wife of the intestate, at the time of his death, and his widow at the time of presenting her petition; and by the same evidence, the appellant was shown not to have been the lawful wife of said intestate, and now his widow; hence the latter was not entitled to letters upon his estate. The authority, for the surrogate to revoke letters of administration granted, under such circumstances, as were those in this case, is to be found in the act of 1837, and in the general powers of that court. (Sipperly v. Bowers, 24 N Y Rep., 46.) See, also, O'Gara v. Eisenlohn (38 N.Y., 296). Section 33 of the Act of 1837, declares: "Whenever it shall appear to the surrogate, that letters of administration have been granted on, or by reason of any false representations, made by the person to whom the same were granted, the surrogate, on the application of any person interested, shall have power to revoke such appointment." In this case, the appellant was appointed administratrix, "on and by reason of the false representations made by her in her petition, duly verified, that she was the lawful wife of said intestate, at the time of his death, and his then widow." Such representations were false, though honestly made, and at the time believed by her to be true. This, however, does not affect the power given by the statute to the surrogate; that power is given, and may be exercised whenever an appointment has been obtained by the false representation of the person appointed, without regard to the belief, of that person, in its truth, or motive in making it. A false representation is none the less false, because the person making it believed it to be true. *Page 277 I am, therefore, of the opinion that, upon the clear and well established facts of the case, the surrogate was right in his order, revoking the letters of administration issued to the appellant. Such revocation being made, the decree appointing the respondent administratrix, upon her petition, followed as a matter of course, she being the person entitled to the same. Judgment of Supreme Court affirmed.