Kerr v. . Kerr , 41 N.Y. 272 ( 1869 )

The respondent presented her petition to the surrogate, praying for the revocation of the letters of administration issued to the appellant upon the estate of Richard E. Kerr, pursuant to section 34, chapter 460, Laws of 1837 (2 R.S., 222, § 7). That section provides, that whenever it shall appear to the surrogate that letters of administration, c., shall have been granted on, or by reason of false representations, made by the person to whom the same were granted, the surrogate shall have power to revoke such letters. The ground upon which the appellant procured the letter to be issued to her was, that she was, at the time of the decease of Kerr, his wife; and the letters were issued to her as his widow. The allegation of the respondent, in her petition, was, that the appellant was not the wife of the intestate at the time of his decease, but that she, respondent, was such wife, and therefore, entitled to administer by reason of being his widow. The counsel for the appellant insists, that it having appeared from the evidence, that to determine which of the parties was the wife and widow of the intestate, it was necessary to inquire into, and pass upon the validity of a judgment divorcing the intestate from the respondent, rendered by a Circuit Court of the State of Indiana, it was not competent for the surrogate to decide that question, and that he should have dismissed the proceeding. In this position, I do not concur. The statute expressly empowers the surrogate to determine the truth or falsity of the allegations upon which the letters were issued. This includes the power to decide every incidental question necessary for that purpose, whether such question be one of fact or law. If the judgment was valid, and the marriage between the respondent and the intestate was thereby dissolved, the appellant was entitled to administer upon the estate as widow. If not, she was not so entitled, but the respondent, as widow, was entitled to letters authorizing her to administer. From the evidence, it appeared that the marriage between the intestate and respondent was celebrated in the State of New York. That both of the parties resided, and were domiciled in this State at the time, and that each so continued until the death of the intestate. That no process in the suit instituted by the intestate in Indiana was ever served upon the respondent, nor did she have any notice of the proceeding. Although it appeared from the record that attorneys appeared for the respondent in the suit, yet it was proved by the respondent that she never authorized them to appear, and had no knowledge thereof. That such appearance was not only a fraud upon the respondent, but also upon the court in Indiana, and the laws of that State. The judgment was therefore void as to the respondent. (Shumway v.Stillman 6 Wend., 447, and cases cited.) This renders it unnecessary to inquire whether the judgment was not also void, by reason of the fact, that the intestate was not a resident of the State of Indiana, as required by the laws of that State. The judgment awarding the divorce being void, the respondent continued the lawful wife of the intestate, notwithstanding his subsequent marriage with the appellant in this State. That marriage was void, for the reason that at the time of its occurrence the intestate had a wife living. The surrogate was right, therefore, in revoking the letters granted to the appellant, and in granting letters to the respondent, and the judgment of the Supreme Court affirming the same must be affirmed.

All the judges concurring, judgment affirmed.