In re Ellis' Estate , 55 Minn. 401 ( 1893 )

Gilfillan, C. J.

Appeal from an order appointing an adminis-tratrix. Stating tbe history of tbe matters involved in chronological order, in 1869 Matthew Ellis and Rachel Cottrell, then residents in Wisconsin, intermarried in that state, and resided therein —tbe latter part of tbe time at Hudson — from tbe time of their marriage till October, 1883, when they came to St. Paul, Minnesota. February 29,1884, she commenced by proper personal service of summons an action against him for divorce in tbe Circuit Court for tbe county of St. Croix, (in which Hudson is situated,) in said state. Her complaint was sworn to by her, and it alleged, among other things, that she then was, and for more than three years last past bad been, a resident of said county and state, and that for more than a year prior to bringing tbe action tbe defendant bad willfully deserted and refused to live and cohabit with her; and it demanded judgment dissolving tbe marriage, and requiring tbe defendant to pay her tbe sum of $8,000 alimony. Tbe defendant filed an answer, not raising any substantial issues, and tbe parties made and filed a stipulation agreeing upon tbe alimony at $6,150 and a horse, carriage, robes, etc., and all tbe defendant’s household goods, except bis library. Tbe answer and stipulation suggest an agreement between tbe parties for a divorce, — a sug-gestión which ought to have caused the court, and we must assume that it did, to require strict and ample proofs of the facts showing a cause of action, and which would have been influential upon an application to vacate the judgment rendered on the ground of collusion and fraud upon the court. But that did not go to the jurisdiction of the court over the case. A reason for deciding against the plaintiff, or a fraud upon the court as to the judgment to be rendered, or the character of the motive that induced the bringing the action, does not affect the jurisdiction. March 27, 1884, judgment in that action was rendered, dissolving the marriage between the parties, and allowing the plaintiff therein the alimony stipulated; and that alimony was paid. September 2, 1886, Matthew Ellis and Flora Wilson intermarried, and they lived together as husband and wife until December 7, 1892, when he died in St. Paul, Ramsey county, in this state.

Flora Ellis, the second wife, filed a petition in the Probate Court of said county, stating the necessary jurisdictional facts, alleging that Matthew Ellis died intestate, and that she was his widow, and asking to be appointed his administratrix. On the day appointed for the hearing Rachel Ellis appeared, denied that Flora was the widow, alleged that she was the widow, and asked that she be appointed administratrix. At the same time appeared a brother and sister of deceased, representing that the deceased had made a will, still in force, and asking the court to make the proper order or decree in the premises. The Probate Court appointed Flora administratrix, and on an appeal to the District Court, in which the court heard all the parties, that court affirmed the decision of the Probate Court.

. Before taking up the principal question in the case, the only one which seems to us of sufficient importance, as presented by the evidence, to call for consideration at any length, we will dispose of others of less importance. It is claimed by appellants that the act of 1889 known as the “Probate Code” was not passed in the house of representatives in the manner prescribed by the constitution, because it does not appear from the house journal that the bill was read on three different days, or that the rule was suspended, as required by the constitution. It is not clear to us what the Probate Code bas to do with the case, for the rule providing who shall be entitled to administration was the same under the prior law as under that act, and the evidence of a will offered was not sufficient to establish a will, not produced, either under the prior law or the Probate Code. Every bill signed and approved as required by the constitution is presumed to have been properly passed. And, as held in State v. Peterson, 38 Minn. 143, (36 N. W. 443,) the absence from the journal of either house of an entry showing that a particular thing was done, is no evidence that it was not done, unless the constitution requires the entry to be made; and there is no such requirement in respect to the reading of a bill on three different days, or its passage under a suspension of the rule. The objection, therefore, is not well taken.

Ellis executed two wills, — one in 1890, which he destroyed, with intent to revoke, in July, 1891, when he executed another. He destroyed that will, apparently with intent to revoke it, December 31, 1891. The appellants offered evidence tending to prove that at that date he had not sufficient mental capacity to make or revoke a will. On the respondent’s objection this evidence was excluded, on the ground, as we understand, that it was immaterial, because there was not sufficient evidence of the will.

It must be apparent that, in order to defeat an application for the appointment of an administrator, proof of a will, not forthcoming, must be such as to show that it can be established. Proof that one was executed will not suffice without proof to a reasonable certainty of its contents. To establish a will without such proof would be to make a will for the party.

The evidence afforded no means of determining with any degree of certainty what disposition the will of July, 1891, made of the testator’s property. The most that could be made of it was that it left to Flora Ellis one-third of the property, and something more, but how much or what more did not appear; that there were specific devises or legacies to others, but to whom, except one, or how much to any one of them, did not appear; and that there was a residuary devisee or legatee, but who, did not appear; and there were no means of determining how much would be the residue.

Of course, a will, not produced, could not be established on any such evidence, and evidence that tbe testator bad not capacity to revoke it would be immaterial.

That leaves only tbe question wbicb of tbe two, Flora or Racbel, was tbe widow of Matthew Ellis? That depends on tbe validity of tbe judgment divorcing Racbel and Matthew.

It is objected that tbe judgment was not sufficiently proved, because — First, tbe authentication was not in conformity with tbe act of congress; second, tbe copy authenticated is a copy of tbe judgment roll, and it does not appear tbe judgment was ever entered in tbe judgment book.

When tbe proceedings of a court of another state are authenticated as provided by act of congress, they must be received as evidence; but it is competent for tbe legislature of each state to provide that proof of such proceedings may be received in tbe courts of such state by authentication less than is prescribed by act of congress, and tbe authentication in this case was in accordance with tbe statute of tbe state.

We will assume that tbe laws of Wisconsin are the- same as our own in respect to entering judgments and making up the judgment rolls. Tbe roll, or an authenticated copy of it, is evidence of all that is properly contained in it, including tbe judgment, and is evidence, prima facie at any rate, that the judgment was properly rendered and entered, so as to have effect.

It is objected to tbe judgment that by tbe laws of Wisconsin (wbicb on this point were proved) tbe action for divorce is a local action, — that is, that it is properly triable in tbe county where tbe parties, or one of them, resides; that by tbe pleadings it appears that tbe only county in wbicb either party resided was tbe county of St Croix, but that tbe bearing in tbe action was had in tbe county of Eau Claire. And it is urged that in bearing tbe case tbe court acted without jurisdiction. We are not referred to any decision in that state as to tbe effect on tbe jurisdiction of a trial (by tbe same court) in one county when tbe statute provides that tbe trial ought to be in another. In this state it might be an irregularity, and, if objected to, error, but would not affect tbe jurisdiction of the court so as to render tbe judgment void. Gill v. Bradley, 21 Minn. 15; Kipp v. Cook, 46 Minn. 535, (49 N. W. 257;) Tullis v. Brawley, 3 Minn. 277, (Gil. 191.) And we assume that the rule is the same in Wisconsin.

The appellants offered, in order to impeach and avoid the judgment, to prove that Rachel Ellis was compelled to bring the action by the defendant’s course of conduct towards her, which consisted in endeavoring to persuade her to bring the action; that during the period of two years he abandoned her at different times, at first for a week at a time, gradually lengthening the periods of absence until they became three months at a time, leaving her unprovided with the necessaries of life, and threatening, whenever he returned, that he would continue that course of conduct unless she consented to bring the action, and that unless she so consented he would run away, and leave her without a penny; and also to prove other acts of his of a similar character, all of which had such effect upon nerves and health and mental condition that she was not a free agent, in which condition she brought the action; from all which it is claimed she brought it under duress. Whether at any time, and especially whether after she has received and enjoyed the fruits of the action, and has acquiesced for years, until the defendant has married again, and has died, and there is left solely the matter of distributing his property, a woman plaintiff could, because of such facts, obtain any relief in the same action, we will not undertake to say. Certainly it would be no ground for assailing the judgment in a collateral proceeding at any time. In the majority of actions for divorce by wives on the ground of desertion or ill usage, the same claim of duress to bring the action might be made as in this case, and the stronger the grounds for divorce the stronger would be the ground to avoid the judgment whenever it might be convenient or profitable to do so. The court properly excluded the evidence.

The principal question in the case was presented by the appellants’ offer to prove, and the ruling of the court excluding the evidence, that at the time of bringing the action in Wisconsin and of the divorce decree neither of the parties to it was a resident of that state, but that both were residents of this state. It is claimed for the evidence that, if admitted, it would have shown that the Wisconsin court had no jurisdiction of the subject-matter of the action, to wit, the marital relation between the parties; that consequently the decree was void; Rachel remained the wife, and is now the widow, of Matthew; and that the marriage with Flora was void.

The question thus raised is of great importance, and difficult to satisfactorily determine. It is an undisputable general proposition-that the tribunals of a country hare no jurisdiction over a cause of- divorce, wherever the offense may have occurred, if neither of the parties has an actual, bona fide domicile within its territory. This necessarily results from the right of every nation or state to determine the status of its own domiciled citizens or subjects without interference of foreign tribunals in- a matter with which they have no concern. But when in the court of a state an action for divorce is brought, and a decree of divorce rendered, the court is presumed to have determined the facts essential to its jurisdiction, among them the residence of the parties.

When, as between whom, and to what extent is such determination binding in the state in which the parties are in fact residents? The cases in which the question may arise may be divided into three classes:

First, in proceedings between the State of the parties’ actual residence and one of the parties;

Second, in proceedings between the parties in the state of their actual residence, where the divorce in the other state was procured on the application of one of them, the other not appearing in the action to procure it;

Third, in proceedings between the parties when both voluntarily appeared in the action in which the divorce was granted, and consented to the jurisdiction, or that the court might determine the facts on which the jurisdiction depended.

In the second class of cases it was settled that a judgment of another state can be assailed on the ground of want of jurisdiction in the court to render it, the decisions have been practically uniform that the party who did not submit to the jurisdiction is not bound by the judgment.

Of the decisions in cases coming under the first class we refer to four,—Hood v. State, 56 Ind. 263; Van Fossen v. State, 37 Ohio

St. 317; People v. Dawell, 25 Mich. 247; and State v. Armington, 25 Minn. 29,—all cases between tbe State of actual residence and one of tbe parties. In tbe first of these tbe record of tbe judgment showed that neither of tbe parties was a resident of Utah, where it was rendered, so that tbe record impeached itself. It was, of course, held that tbe judgment was yoid. In each of tbe others it was held that, in order to show want of jurisdiction in the court rendering the judgment, it might be shown that neither of the parties resided within the state in which it was rendered, and, that being shown, it was void. In the opinion in each case-language is used apparently sustaining the proposition that such would be the rule however the question of the validity of the judgment might arise. In People v. Dawell, Mr. Justice Cooley delivered the prevailing opinion, Mr. Chief Justice Christiancy concurring, and Mr. Justice Campbell dissenting. It was enough for the purpose of that case to decide whether the judgment was valid as against the State of residence. Whether it was valid as between the parties was not before the court; and such was the casein Hood v. State and State v. Armington. So far as the State-of residence is concerned, it must be taken upon the authorities, and certainly in this State, upon the Armington Case, that it is-not bound by a judgment divorcing two of its resident citizens, rendered by a court of another state. There are reasons why it should not be bound, however it may be between the parties which we will presently refer to.

It does not follow that the judgment is void in the third class of cases. A judgment operating on a res may be binding between the parties to the action without binding one not a party, but interested in the res. In an action for divorce the res upon, which the judgment operates is the status of the parties. There are three parties interested in that, — the husband, the wife, and the State of their residence. This was in the mind of Mr. Justice Cooley in writing the opinion in the Dawell Case. He said: “But-it is said if the parties appear in the case the question of jurisdiction is precluded. That might be so if the matter of divorce-was one of private concern exclusively.” “As the laws now are,, there are three parties to every divorce proceeding, — the husband,. the wife, and the State; the first two parties representing their respective interests as individuals; the state concerned to guard the morals of its citizens, by taking care that neither by collusion nor otherwise shall divorce be allowed under such circumstances •as to reduce marriage to a mere temporary arrangement of conscience or passion.” “Such being the case, suppose we admit that the parties may be bound by their voluntary appearance in the foreign jurisdiction. How does that affect the present case? How, and in what manner, did the Indiana court obtain jurisdiction of the third party entitled to be heard in this proceeding; that is to say, of the State of Michigan?” This line of reasoning was ¡applied by the same court in Waldo v. Waldo, 52 Mich. 94, (17 N. W. 710.) One question in that case was whether the plaintiff was the widow of Jerome B. Waldo, just as in this it is whether Flora Ellis is the widow of Matthew. Previous to her marriage to Jerome B. she had been married to one Carey, from whom she had obtained a divorce in Indiana, both parties appearing in the action for it. The court held the judgment could not be assailed by showing want of residence in Indiana and residence in Michigan, •saying in one part of the opinion: “This State has never complained of that judgment, and neither party has objected to it.” The Dawell Case was not referred to, and we may from both cases take the rule in that State to be that, while the State cannot be bound by its resident citizens appearing in and consenting to the jurisdiction of a court in another State in an action for divorce, the parties may so bind themselves in respect to their individual interests. In Kinnier v. Kinnier, 45 N. Y. 535, a private action, it was held that a judgment of divorce by the court of another State, both parties appearing in the action, could not be assailed on the question of residence. In the course of the opinion the court, Church, C. J., said: “Nor can I assent to the reason given for allowing the husband to repudiate the binding force of the judgment upon him, after voluntarily submitting himself to the jurisdiction of the court, and litigating the case upon its merits;” thus recognizing the effect of the voluntary submission upon the parties’ right to question the judgment. Cases in Massachusetts, to which we are cited by appellants, are hardly of authority on the point, because the decisions were based mainly on a statute of that State. Ellis V. White, 61 Iowa, 644, (17 N. W. 28,) has only bearing on one phase-of this case. It was there held that a plaintiff in an action for divorce and alimony cannot question the jurisdiction of the court after accepting the benefits of the judgment.

(Opinion published 56 N. W. Rep. 1056.)

It may seem anomalous that a judgment of divorce can be so. far effectual between the parties as to extinguish' all rights of property dependent on the marriage relation, without being effectual to protect them from accountability to the State for their subsequent-acts. One reason why they ought not to be permitted, by going into another State and procuring a divorce, to escape accountability to the laws of their State, is that their act is a fraud upon the State,, and an attempt to evade its laws, to which it in no wise consents, and it may therefore complain. But the parties do consent, and’ -why should they be heard to complain of the consequences to them of what they have done? Why should they be permitted to escape-those consequences by saying: “It is true that by false oath made by one of us, and connived at by the other, we committed a fraud in the Wisconsin court, and induced it to take cognizance of the-case; but now we ask to avoid its judgment by proof of our fraud, and perjury or subornation of perjury.” Because we do not think it can be done the parties must, so far as their individual interests, are concerned, abide by the judgment they procured that court to. render; and, of course, what will bind them will bind those who-claim through them, or either of them, which is the case with the appellants other than Rachel.

There were other minor questions raised by the assignments of' error, but we do not see any merit in any of them.

Order affirmed.