Petitioner-respondent, Elisabeth S. Rathscheck, married Edgar R. Rathscheck, decedent above named, in 1933. In 1944, while both were residents of New York City, petitioner brought a suit against her husband, in a Mexican court, for an absolute divorce. Neither party went to Mexico at any time, but both joined by mail in the arrangements for the Mexican proceedings. Mrs. Rathscheck's petition was presented to the Mexican tribunal by an attorney representing her, and an answer, admitting the petition's truth and joining in the prayer for a divorce, was filed on behalf of the husband. The Mexican court then handed down a decree, dated May 19, 1944, declaring that the marriage was "in all its legal effects dissolved". It is conceded here that this "mail-order" judgment was totally void in New York (Vose v. Vose, 280 N.Y. 779; Querze v. Querze, 290 N.Y. 13). In 1946, respondent brought a second suit for divorce against her husband, on personal service, this time in Queens County, New York, and in that second suit she asked for and obtained, after her husband had defaulted in pleading, an interlocutory judgment which held the Mexican divorce
Mr. and Mrs. Rathscheck never had children, so the net estate must go, under our Decedent Estate Law, either to petitioner, or to collateral relatives whose interests, since they are nonresident aliens, are now represented by the Attorney General of the United States under a "Vesting Order", made a few days after the entry of the Surrogate's decree, hereafter described. A special guardian, who acted for some of those collateral relatives, took the position, on this accounting in the Surrogate's Court, that Elisabeth Rathscheck was, under the facts above summarized, barred from taking a distributive share of this estate, by subdivision (b) of section 87 of the Decedent Estate Law, which is as follows: "No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the decedent, where such decree or judgment is not recognized as valid by the law of this state". The Surrogate concluded that the statutory language just quoted means what it says, and that it fixes the position of this petitioner who, according to the undisputed facts, had "procured without the state of New York a final decree or judgment dissolving the marriage with the decedent" which decree "is not recognized as valid by the law of this state". The Surrogate therefore disallowed Mrs. Rathscheck's claim for a widow's distributive share, and ordered the net estate turned over to the collateral relatives, or to the Alien Property Office for their benefit.
On appeal by petitioner, the Appellate Division took a different view, holding, on grounds we will state hereafter, that the words of subdivision (b) of section 87: "decree or judgment * * * not recognized as valid by the law of this state" did not include within their meaning a "mail-order" divorce obtained in a foreign country and that, accordingly, since Mrs. Rathscheck, at the time of this decedent's death, was still his wife, there was no impediment to the award to her of a widow's share of his estate.
The argument for petitioner is based on a statement in a note or report (see Combined Reports of Decedent Estate Comm., Reprint, p. 202; McKinney's Cons. Laws of N. Y., Book 13 [1949 ed.], p. 482), made to the Legislature by the Commission to Investigate Defects in the Law of Estates at the time the commission recommended the enactment of subdivision (b) of section 87, and which recommendation the Legislature adopted in 1929. The note said that the whole of section 87 is "new" and that, "without limitation as to effect, it [section 87] is intended to be a declaration of the existing law". Apparently to show what "existing law" was referred to, the note then cited Matter of Ensign (103 N.Y. 284); Matter of Albrecht (118 Misc. 737, 119 Misc. 554); Starbuck v. Starbuck (173 N.Y. 503); and Monroe Co. Sav. Bank v. Yeoman (119 Misc. 226). The Ensign and Albrecht cases (supra) deal with the effects of valid divorces, so were, presumably, mentioned by the commission in connection with its recommendation of the adoption of the first subdivision (a) of proposed section 87, and have no relevance to our question here. Starbuck v. Starbuck (supra) and Monroe Co. Sav. Bank v. Yeoman (supra) were, however, decisions as to the rights of wives who went from New York into other States and obtained divorce decrees not valid here. Both cases denied dower to the wives, the Starbuck opinion putting it on the ground of estoppel: that is, that the wife, after procuring the decree, could not be heard to question its effect. Monroe Co. Sav. Bank v. Yeoman, while
Petitioner's argument here, from the commission's note and its citation of those earlier cases, runs like this: those cases held to be estopped, from claiming the benefits of continued marital status, one who procured an invalid divorce in a sister State; however, the argument goes on, a totally void Mexican divorce is so entirely without effect in New York that it estops no one in any subsequent situation (citing Caldwell v. Caldwell, 298 N.Y. 146). So, says petitioner, the commission must have meant, by citing the Starbuck and Monroe Co. Sav. Bank cases (supra), to attach the penalty of disinheritance only to persons procuring invalid sister State decrees, and not similarly to punish those who, by mail, got themselves worthless papers styled "divorces", but issued by a Mexican court without any jurisdiction over the marriage status or the parties.
Of course, all that reads into subdivision (b) of section 87 matter which is not there, and ascribes to the Legislature the making of a distinction between "invalid" and "void" divorces, a distinction not stated or suggested in the statute. We go further and say that there is nothing to show that the commission itself in writing the note above quoted from, had in mind any such distinction, or any difference between purported but ineffective divorces obtained in another State, and purported but ineffective divorces gotten from a court in a foreign country. The language of the statute as recommended and passed: "not recognized as valid by the law of this state" describes any or all of such decrees, and there is no showing that the commission or the Legislature proposed to make fish of one kind, and flesh of another.
If this statute were of doubtful meaning, we could, we assume, look for help to the commission's "petition", or report to the Legislature (see Furman v. Mayor of City of N. Y., 5 Sandf. 16, affd. 10 N.Y. 567), but even then no such help would be forthcoming. The distinction between invalid sister State divorce judgments, and void mail-order Mexican divorces, in that the former result in estoppels and the latter do not, was most recently and most definitely stated by this court
We conclude that subdivision (b) of section 87 is a bar to any award to petitioner, by the Surrogate, of a share in this intestate's property.
The decree of the Surrogate's Court entered on the remittitur from the Appellate Division should be reversed and the original decree of the Surrogate's Court, dated June 22, 1948, reinstated, with costs to the appellant in this court and in the Appellate Division, payable out of the estate. The appeal from the Appellate Division order should be dismissed, without costs.
I agree that the plain language of subdivision (b) of section 87 of the Decedent Estate Law permits us no choice but to reverse and to disallow the claim of petitioner wife. (See, also, Decedent Estate Law, § 18, subd. 3.) And, since that is so, the court can only remark the seeming injury to the sense and symmetry of the law. We have previously held that a wife who procures a "mail-order" decree of divorce in Mexico has nothing, so long as her mate lives, but a scrap of paper. (See, e.g., Caldwell v. Caldwell, 298 N.Y. 146; Querze v. Querze, 290 N.Y. 13.) By our present decision, we are holding that the "husband's" death converts that scrap of paper into a decree of disinheritance.
To those who seek certainty and uniformity in the law, the result cannot help but be perplexing and disappointing, for no logic can account for the variant conclusions reached. The
If so minded, the legislature may enact comprehensive legislation dealing broadly with the subject of "divisible divorce" and its aftermath. Or, if it deems it sufficient merely to put an end to the "mail-order" decree of divorce — procured in Mexico or any other jurisdiction — it may enact laws more limited in scope. At any rate, whatever the ultimate solution, whether it is to be found in general or specific remedies, judicial correctives of the sort urged by Judge CONWAY in his opinion to affirm do not supply the answer; such correctives must of necessity deal with fragments of the problem and can only succeed in further complicating an already chaotic situation.
I am persuaded, in short, that subdivision (b) of section 87 of the Decedent Estate Law must be read as it was written; it cannot be subjected to any corrective gloss by this court.
This is an accounting proceeding in which is sought a determination that by reason of a so-called Mexican "mail-order divorce" the accounting administratrix was not entitled to be a distributee of her deceased husband's estate and that as a result the decedent's next of kin, all of whom are citizens and residents of Germany, are entitled to take his entire estate.
The statute which we must construe is subdivision (b) of section 87 of the Decedent Estate Law which provides as follows: "No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the decedent, where such decree or judgment is not recognized as valid by the law of this state; * * *."
We are all agreed that at the time the statute was enacted in 1929, the Legislature did not have in mind Mexican "mail-order
In amending the Decedent Estate Law in 1929, the Legislature granted to a surviving spouse the right to a distributive share of the estate of the deceased spouse, but, in subdivision (b) of section 87, accompanied that right with the then existing common-law limitation that a spouse who had procured an invalid divorce decree in a sister State was estopped to deny its validity. The Legislature did not use the word "estoppel" but that is the obvious substance and purpose of subdivision (b) of section 87 as indicated by the quoted commission note.
The attempt here, therefore, by the Attorney General is to have subdivision (b) of section 87, a true estoppel statute, stretched so that it may cover a situation not intended to be covered therein and not within the contemplation of the Legislature when it was enacted, for it is only since the enactment of subdivision (b) of section 87, and since 1929, that we decided the cases of Vose v. Vose (280 N.Y. 779); Querze v. Querze (290 N.Y. 13), and Caldwell v. Caldwell (298 N.Y. 146) in which we held that a Mexican mail-order divorce estopped no one and was but a worthless piece of paper.
We had the same question presented to us in Caldwell v. Caldwell (supra). We posed that question in the first paragraph of our opinion as follows (p. 147): "We have presented to us the question of whether any effect may be given by our courts to a divorce obtained by mail from a court of a foreign nation at the
In our State, marriage, while a civil contract, confers a status upon those who enter into it, and the State is interested in the creation, continuance and dissolution of that status. Seventy-five years ago, we said: "It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community." (Wade v. Kalbfleisch, 58 N.Y. 282, 284.) As a result, the People through their legislative representatives have declared the applicable public policy of our State in section 51 of the Domestic Relations Law, and have forbidden any "contract to alter or dissolve" a marriage by a husband and wife.
Under our system of law, in the United States, judicial power to grant a divorce is based upon domicile. Without that, there is no jurisdiction to act. (Williams v. North Carolina, 317 U.S. 287, 325 U.S. 226; Caldwell v. Caldwell, 298 N.Y. 146, 149, supra.) That does not mean, of course, that by comity and under circumstances which do not offend the public policy of this State, we may not recognize divorces granted in foreign countries to one residing there even though domiciled here. We have accorded such recognition but only when it was not contrary to our declared public policy. (Gould v. Gould, 235 N.Y. 14, 29 .)
By reversing, we make it necessary for an attorney to advise a client (cf. Caldwell v. Caldwell, supra, p. 147; Matter of Anonymous, 274 App. Div. 89) in a contemplated application for a Mexican mail-order decree based solely upon a collusive contract violating our State public policy, that if both enter into such contract (since both must agree and sign) the client will insure the fact that if the marital partner survives, that partner will have no distributive share in the client's estate. An attorney will be under the necessity of advising his client that if he or she disregards the public policy of this State and enters into such a collusive contract to dissolve the marriage and obtains a mail-order divorce upon it, while it will not affect the marriage obligation in this State, it will immediately put into operation and fix forever rights of descent and distribution of the survivor of the two spouses; that that will be true regardless of what either or both of them may do thereafter and regardless even of a decree of our Supreme Court declaring the Mexican mail-order divorce void and of no effect, upon direct attack with personal jurisdiction of both parties. There may be no repentance.
The order should be affirmed, with costs.