Misc.]

Surrogate's Court, New York County, June, 1920.

tained in the cases cited is extended to citizens of other states where the property of the intestate is situated here or where the jurisdiction of our courts is exercised in determining the rights of parties.

The recent decisions of our courts, however, clearly limit this rule of public policy only to residents of our state. Justice Page states the rule in the recent case of Kaiser v. Kaiser, 192 App. Div. 400: "We have also held that where neither of the parties to the action was a citizen of this State at the time the action was brought in the foreign state, such a judgment would be recognized as binding, because this rule of public policy is enforcible only for the protection of the citizens of this state. (Kaufman v. Kaufman, 177 App. Div. 162; Schenker v. Schenker, 181 App. Div. 621, affd., 228 N. Y. 600; Ball v. Cross, 190 App. Div. 711; Hubbard v. Hubbard, 228 N. Y. 81.)" Percival v. Percival, 106 App. Div. 111, affd., 186 N. Y. 587. Matter of Coltabellotta (183 App. Div. 753, 758) cites Kaufman v. Kaufman and Percival v. Percival, supra, with approval, and that case is not authority as claimed by the administratrix for a determination in her favor. There the matrimonial domicile was in Pennsylvania, and the wife resided there at the time of the foreign divorce. That state, following New York's policy, had refused to give validity by comity to judgments of divorce in foreign states against its citizens who were not personally served. Connecticut, on the contrary, extends comity and recognizes such divorces (in actions where there is no personal service) as valid against its own citizens. Apparently, therefore, if Baker had died a resident of or leaving property in Connecticut his first wife would have had no standing.

The cases of Gildersleeve v. Gildersleeve, 88 Conn. 697, 698, and Pettis v. Pettis, 91 id. 608, clearly define the rule adopted by that state. In the former case the

Surrogate's Court, New York County, June, 1920. [Vol. 112.

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court said: "It has long been the policy of this State to grant divorces for desertion. Surely the period of it is not so much of the essence of the matter and does not so vitally affect public policy that it reasonably can be said that the granting of divorces for a period of desertion less than our own is so repugnant to our conception of public policy and of what makes for good morals as to justify us in refusing to recognize the judicial action of sister States in dissolving marriages under the conditions stated. We certainly cannot consistently complain of the foreign divorce which was granted to this defendant, as being one obtained by methods not consonant with our public policy, as having been granted against a nonappearing nonresident, who was not served with process within the foreign jurisdiction. Our statutes provide, and have long provided, for service upon nonresidents precisely like that resorted to by the South Dakota court, and authorized the grant of divorces upon such service. It is no light matter, as affecting individual, social or civic interests and good morals, that, through the attitude of the courts in refusing recognition to the judicial action of sister States a condition should be created where legitimacy becomes dependent upon State lines, where wives in one State become concubines when they pass into another, where a husband or wife living in lawful wedlock in one jurisdiction is converted into a bigamist by change of location, where persons capable of inheritance in one part of our country are incapable in another, where certainty of status may readily give place to uncertainty and property rights be thrown into confusion." The facts in the Gildersleeve case are very similar to the case here — willful abandonment by the husband and birth of a child; but notwithstanding these facts, the court denied its protection to the abandoned wife in Connecticut. In Pettis v. Pettis, 91 Conn. 608, this decision is fol

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Misc.] Surrogate's Court, New York County, June, 1920.

lowed with approval, and the validity of such ex parte divorce decrees is confirmed. The second wife is a resident of our state, and if the New York rule was applied here Gussie Baker would receive greater consideration from our state than she would have received from her own commonwealth. Collin, J., in Hubbard v. Hubbard, supra, pointed out that our policy is to promote the permanency of the marriage contract and the morality of the citizens of our state.

The state of New York was not a party to any of the marital transactions of these rival claimants. As husband and wife neither Gussie Baker nor the deceased resided in New York. Bertha and her husband came here after their status had been changed by the divorce, and after a valid marriage in Massachusetts. The Connecticut doctrine is a most perfect example of reciprocity. She grants divorces against nonresident defendants, and in turn recognizes those obtained in foreign states. Proof of the law of Illinois was not submitted to the court by the administratrix, and the decree there following a residence by the plaintiff for a substantial period of time must be held regular. In addition, there is a strong presumption in favor of the legitimacy of the infant daughter, the issue of the second marriage. Matter of Meehan, 150 App. Div. 681; Barker v. Barker, 172 id. 244; Matter of Biersack, 96 Misc. Rep. 161.

The decision of this motion must be accompanied by hardship. The innocent first wife is deprived of her share in the estate of her husband. Fortunately her daughter is not so punished, but will take one-third of the estate. The decisions of the Court of Appeals and the Appellate Division cited above are conclusive, and this court must, in obeying them, grant the motion and oust the administratrix.

Decreed accordingly,

Surrogate's Court, New York County, June, 1920. [Vol. 112.

Matter of the Estate of HELEN W. WATTS, Deceased.

Wills

(Surrogate's Court, New York County, June, 1920.)

construction of trusts codicils - devise

estates.

residuary

Where there is no legal devise or bequest of a part of the estate to which an heir or next of kin would otherwise be entitled, he is not cut off by an expression in the will to that effect. (P. 303.)

The will of testatrix divided her residuary estate into seven equal shares, giving one to each of five children and two to her daughter E. One of such shares was bequeathed to the executors in trust for one of the sons of testatrix who predeceased her intestate and without issue, with direction to invest the same and pay the income to said son for life and upon his death to transfer the principal of the trust fund to such one or more of the lawful issue of testatrix, in such shares, at such time or times and in such manner as the son might by will direct or appoint. The will of testatrix contained no provision as to the disposition of the share of any life beneficiary who shall predecease the testatrix and without issue. Held, that the children of another son of testatrix, who survived her, took the share of their deceased uncle though by the will of the testatrix no provision was made for them. (Pp. 301, 302.)

Where by a codicil the power of appointment given to the daughter E. was limited to one share, the other share given to、 her reverted to the residuary estate of testatrix and must be distributed in equal parts among the residuary trusts, including that of E. (P. 304.)

PROCEEDING upon the accounting by executor.

Louis H. Porter, for executors.

Chester B. McLaughlin, Jr., special guardian.

FOLEY, S. In this accounting by the executors a question of construction of the will is presented. The will divides the residue of the estate into seven equal

Misc.] Surrogate's Court, New York County, June, 1920.

shares, giving one to each of five children and two to the daughter Ethel. Each child is given a power of appointment by will as to his or her share, except that in the case of Ethel, by the codicil the power of appointment is limited to one share. The construction involves the share bequeathed to the son, John Walter Watts, who died prior to the testatrix, intestate and without issue. The provision for him is as follows:

(3) I give, devise and bequeath one other of said shares or parts to my executors in trust to invest and reinvest the same and collect the income thereof and pay it over quarterly to my son, John Walter, for and during the term of his natural life, and upon his death to convey, assign, transfer and set over the principal thereof to such one or riore of my lawful issue in such shares or proportions at such time or times and in such manner as he may by his last will and testament direct or appoint." Article VI is as follows: "VI. In case any of my said children shall fail to dispose effectually by his or her will of the whole or any part of that part of my estate which I have. herein before given him or her power so to dispose of and shall die without leaving any lawful issue him or her surviving, then and in that event upon his or her death I give, devise and bequeath so much of such share as shall not have been so disposed of to such of my children as shall then be living and to the lawful issue then living of such of my said children as shall then be dead, each of such living children and the issue collectively of each of such dead children to take and receive one equal share thereof to be divided among such issue per stirpes and not per capita."

Article VII provides that if any child "shall die before me and shall leave lawful issue me surviving such issue shall upon my death take and receive "the share of the deceased child per stirpes.