Bell v. Little

Sears, J.: Plaintiff seeks in this action admeasurement of dower in certain premises of which James Bell was seized at the time of his death. The answering defendants, who are heirs at law of James Bell, challenge the plaintiff’s claim of dower on the ground that the plaintiff was not the lawful wife of James Bell. [236] In 1904 the plaintiff married one Kelsey in this State and lived with him in Rochester until May, 1912, when she abandoned her husband and went to the State of Pennsylvania for the sole purpose of obtaining a judgment of divorce from Kelsey in the courts of that State. She instituted an action and was granted a divorce by the Pennsylvania courts on the 5th day of Decgmber, 1914, on the ground of abandonment. Process was never personally served upon Kelsey in the State of Pennsylvania or elsewhere, and he entered no appearance in the action, and was at all times a resident of this State, and is still living. The plaintiff, too, has always resided in this State, except for the brief period that she remained in the State of Pennsylvania for the purpose of instituting and carrying on the divorce against Kelsey. James Bell, who was also a resident of this State, was acquainted with the plaintiff before she went to Pennsylvania and knew that she was going to Pennsylvania to get a foreign decree of divorce against her husband Kelsey. Shortly after the granting of the decree, Bell went to the State of Pennsylvania, and he and the plaintiff went through a form of ceremonial marriage at Erie, Pennsylvania, on the 5th day of June, 1915. Bell and the plaintiff then returned to Rochester where they lived together as husband and wife until the death of Bell on the 21st day of December, 1918. The judgment of divorce must be assumed to be valid within the territorial limits of Pennsylvania. However, as the Pennsylvania courts failed to acquire jurisdiction of Kelsey, the defendant in that action, by personal service, and Pennsylvania never was the matrimonial domicile of Kelsey and his wife, the courts of this State are not required by the Federal Constitution (Art. 4, § 1) to give full faith and credit to the Pennsylvania judgment. (Haddock v. Haddock, 201 U. S. 562.) According to the long-established doctrine, the status of the plaintiff in this State as the wife of Kelsey remained unaffected by the Pennsylvania judgment. (Ball v. Cross, 231 N. Y. 329; Hubbard v. Hubbard, 228 id. 81; Winston v. Winston, 165 id. 553; Matter of Caltabellotta, 183 App. Div. 753.) In the case of Kelsey v. Kelsey (204 App. Div. 116), decided at the same time as this case, we recognize this very plaintiff as the wife of Kelsey, but deny her husband Kelsey the divorce which he seeks because of his own misconduct, which the defendant in that case (the plaintiff here) has set up as a defense. It is doubtless the general rule that a contract entered into in another State or country if valid there is valid everywhere, and this rule is often applied to the marriage contract. (Van Voorhis V. Brintnall, 86 N. Y. 18.) Our courts have not adopted the rule [237] which seems to prevail in England that when a marriage is attacked on the ground that one of the parties was incapable of contracting a valid marriage, the incapacity is to be judged by the law of such party’s domicile. (Dicey Confl. Laws [3d ed.], rule 182, chap. XXVI; Sottomayer v. DeBarros, L. R. 3 P. D. 1. The State has, however, unquestioned jurisdiction over the marital status of its own citizens. (Maynard v. Hill, 125 U. S. 190.) The State should not apply the lex loci contractus to one of its own citizens when by so doing a situation is created which is not in conformity with its own recognized policy. (Cunningham v. Cunningham, 206 N. Y. 341; Bays v. Bays, 105 Misc. Rep. 492; Whart. Confl. Laws [3d ed.], § 165A.) To recognize in this State the Pennsylvania marriage between this plaintiff and James Bell involves the recognition of two marriages of the plaintiff existing at the same time. As James Bell was at all times a resident of this State, we áre in my opinion justified in treating this as an exception to the general rule. On the other hand, the Pennsylvania judgment would prevent the plaintiff claiming any matrimonial rights against Kelsey upon the principle that “ ‘ where a party has invoked the jurisdiction of any court and submitted himself theretq, he cannot thereafter be heard to question such jurisdiction.’ ” (Starbuck v. Starbuck, 173 N. Y. 503.) The plaintiff contends that this principle was also applicable to James Bell in his lifetime, and is binding upon the defendants who succeeded to his rights, because Bell was cognizant of the plaintiff’s original intention when she went to Pennsylvania to secure a divorce, and married her with knowledge of and in reliance upon her Pennsylvania judgment of divorce from Kelsey. In Kaufman v. Kaufman (177 App. Div. 162) the plaintiff was denied a judgment of annulment which he sought on the ground that the defendant had another husband living at the time of his marriage with her because he had persuaded and induced her to secure a foreign divorce and had furnished her the money to do so, and assured her that the divorce so obtained was valid. The instant case is lacking in elements which were there present. The plaintiff here was far from innocent in the Pennsylvania transaction. The evidence shows no persuasion or inducement on Bell’s part. She was unquestionably up to the time of the death of Bell and is still the wife of Kelsey, although, as stated, because of her action in Pennsylvania she could not claim her wifely rights against him. She cannot, while occupying this status, claim rights inconsistent therewith against the heirs of Bell, nor has any act of James Bell entitled her to immunity from the consequence of her own conduct. Both the plaintiff and Bell entered into their relations [238] with each other with their eyes wide open, a condition inconsistent with the doctrine of estoppel. It appears that after the ceremonial marriage in Pennsylvania between the plaintiff and James Bell, a parcel of real estate in the city of Rochester was deeded by the parents of Bell to James. Bell and the plaintiff as husband and wife. The court has found that no part of the consideration for this conveyance was paid by the plaintiff, and has concluded as a matter of law that since the plaintiff was not the wife of James Bell, the conveyance was one to the plaintiff and James Bell as tenants in common, but that the plaintiff, having paid no part of the consideration, acquired no interest in the property and has excluded her from any ownership in this parcel. Plaintiff not being the wife of James Bell, the grantees became tenants in common of this property. (Perrin v. Harrington, 146 App. Div. 292; Bambauer v. Schleider, 176 id. 562.) Presumptively, their interests in common were equal. (Jackson v. Moore, 94 App. Div. 504.) This presumption is not rebutted by the fact that no part of the consideration was paid by the plaintiff, for the inclusion of her name in the conveyance as one of the grantees establishes conclusively that she acquired some interest in the premises. To hold to the contrary would be to disregard section 94 of the Real Property Law which provides: “ A grant of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the person paying the consideration, and, unless a fraudulent intent is disproved, a trust results in favor of. such creditors, to an extent necessary to satisfy their just demands; but the title vests in the grantee, and no use or trust results from the payment to the person .paying the consideration, or in his favor, unless,” etc. The exceptions are not material here. As to this particular parcel, therefore, the plaintiff is a tenant in common with the heirs of James Bell with the usual rights of such a tenant in common. The judgment should, therefore, be modified by striking out from the clause of the judgment relating to the property at 158 Glenwood avenue, the following words: “ But as such tenant in common, and having never at any time ever paid any money or other thing in value by way of consideration for the purchase price of said real property and premises, she has no legal right, title or interest of whatsoever nature, kind and description, legal or equitable, in and to said real property and premises,” and as modified should be affirmed. The fourth finding of fact should be reversed and a new finding made in lieu thereof differing from the original finding only in [239] inserting in subdivision 2 contained in said finding after the word “ also ” the words “ an undivided one-half interest in,” and the tenth conclusion of law should be reversed, without costs. All concur, except Kruse, P. J., and Davis, J., who dissent, each, in a separate opinion.