Blumenthal v. Tannenholz

31 N.J. Eq. 194

• Court: New Jersey Court of Chancery
• Decided: May 15, 1879
• Status: Published

Opinion

The Chancellor.

This is a suit for a decree annulling a marriage for fraud. The parties are Jews. The complainant alleges that she was induced to enter into a contract of marriage here, without knowing it. to be such, with the defendant, by the false and fraudulent representations of the latter to her, that the ceremony was a mere betrothal, such as is common among the Jews. Neither of the parties then resided in this state. The defendant does not now reside here. He has not been served with process. The complainant was, when the suit was brought, and still is, a minor. Her parents reside in Canada. There is no evidence that she has been emancipated, but, on the other hand, the inference from the evidence is to the contrary. The only evidence adduced to prove that her residence is in this state, is her own testimony that she is a resident of Newark, and has resided there for the last eighteen months. Hnless one of the parties was domiciled here when the suit was brought, the court has no jurisdiction in the ease. 2 Bish. on Mar. and Div. § 144. The fact that the marriage took place here will not confer jurisdiction. Id. § 198. The complainant, indeed, swears that she resides here, hut she also swears that her parents reside in Montreal, in Canada, and have resided there for the past ten years, and that, when this suit was instituted, she was, and still is, a minor. She does not claim to have been emancipated from her parents, nor does she give any reason for her change of abode from Canada to Hew Jersey. Her domicil, therefore, must be adjudged to be that of her parents. The domicil of the legitimate unemancipated minor who is not sui juris, and whose will, therefore, cannot concur with the fact of his residence, is, if his father be alive, the domicil of the latter. Phillim. on Dom. 37. It is an undisputed position of all jurists, says that writer, that, of his own accord, proprio marte, the minor cannot change his domicil. Ibid. See, also, Story on Confl. of Laws § 46. The burden of proof to establish the change of domicil on the part of the minor, is on him. Id. § 47. It is not claimed that the complainant has gained domicil through her marriage. The defendant does not appear to have ever resided in this state.

A marriage contrary to the English act was held to be void, and that the wife could derive no settlement therefrom (Chinham v. Preston, 1 W.' Bl. 192; Bex v. Northfield, Doug. 634) > hut in Bex v. Birmingham, 8 Barn. & G-ess. 29, a marriage of a female pauper, brought about by the fraud of the parish officers, was held to confer a settlement in her husband’s parish; see, however, Barnes v. Wyethe, 28 Vt. pi; and in Johnson v. Huntington, 1 Day 212, a lunatic pauper was held to have gained, by her marriage, a settlement in the state where her husband resided, although the marriage was null. In Lalce v. South Caanan (Pa.), 18 Alb. L. J. 116, the settlement of a divorced female pauper was held to be that of her husband; although by the desertion of her husband a woman may gain her own domicil (Moffatt v. Moffatt, 5 Cal. 280; Johnson v. Johnson, 12 Bush 485). Under what circumstances, generally speaking, a woman may acquire a separate domicil, for the purpose of instituting proceedings in divorce, see Cooley’s Const. Dim. (4th ed.) 491; also, Hick v. Hick, 5 Bush 670; Craven v. Craven, 27 Wis. 4Í8; Jenness v. Jenness, 24 Ind. 365; Vence v. Vence, 15 How. Pr. 497, 576 ; Hope v. Hope, 27 E. L. & E. 2)9 ; Dutcher v. Dutcher, 89 Wis. 651. In England, an infant may not sue for a divorce in his or her own name, but must do so by a prochein ami (Barham v. Barham, 2 Hagg. 5; Du Terreaux v. Du Terreaux, 1 Sw. & Tr. 555; Beavan v. Beavan, 2 Sw. & Tr. 652 ; Morgan v. Thorne, 7 M. &W. 400); and this rule has been followed in this country in some instances (Wood v. Wood, 2 Paige 108, 454; E. B. v. E. C. B„ 28 Barb. 299, 8 Abb. Pr. 44; Henley v. Henley, 2 How. (Miss.) 751); although denied in others (Jones v. Jones, 18 Me. S08; Besare v. Besore, 49 Ga. 378). See Anderson v. Anderson, 11 Bush 327; Adams v. Hannon, 3 Mo. 222; Worthy v. Worthy, 36 Ga. 45; Garnett v. Garnett, 114 Mass. 379; Crump v. Morgan, 3 Ired. Eq. 91. An infant widow may not b« appointed administratrix of her husband’s estate (Collins v. Spears, Walk. (Miss.) 310; Wallis v. Wallis, 1 Wins. 78); and if she should be allowed so to administer, she would not be bound personally on a note given by her for her husband’s debt. Poole v. Hines, 52 Ga. 500. See, further, Cobb v. Brown, Speer’s Ch. 564! Carow v. Mowatt, 2 Edw. Ch. 57; Hindmarsh v. Southgate, 3 Buss. 324; Chappie v. Cooper, 13 M. & W. 252; Loop v. Loop, 1 Vt. 177.—Rep.

The bill will be dismissed.