Desmond, J.
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 [349]*349void, and again decreed a dissolution of the marriage. Before that New York State divorce judgment could become final, however, the husband died, leaving no will. There is evidence that at some time between the Mexican proceedings and the New York divorce suit, the parties lived together in New York City.
Mr. and Mrs. Bathscheck 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 th,e 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 Bathscheck 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. Baths-check’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. Bathscheck, 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.
[350]*350We agree with the Surrogate that subdivision (b) of section 87 is so plain and clear as not to need or permit any construction (see Matter of Hering v. Clement, 196 N. Y. 218; Matter of De Peyster, 210 N. Y. 216, 225; Matter of Tishman v. Sprague, 293 N. Y. 42, 50). “ It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning.” (McCluskey v. Cromwell, 11 N. Y. 593, 601.) Our Legislature has made it the law that one who has procured, outside this State, a divorce not recognized here as valid, may not have a distributive share of her spouse’s estate. No court may refuse to enforce the statutory penalty for that interdicted conduct.
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 eases denied dower to the wives, the Starbuck opinion putting it on the grdund 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 [351]*351citing the Starbuck holding, stated the rationale a little differently : that is, that the foreign divorce, while not binding on the husband, nevertheless brought it about that the marriage was completely dissolved as to the wife.
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.
Free access — add to your briefcase to read the full text and ask questions with AI
Desmond, J.
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 [349]*349void, and again decreed a dissolution of the marriage. Before that New York State divorce judgment could become final, however, the husband died, leaving no will. There is evidence that at some time between the Mexican proceedings and the New York divorce suit, the parties lived together in New York City.
Mr. and Mrs. Bathscheck 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 th,e 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 Bathscheck 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. Baths-check’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. Bathscheck, 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.
[350]*350We agree with the Surrogate that subdivision (b) of section 87 is so plain and clear as not to need or permit any construction (see Matter of Hering v. Clement, 196 N. Y. 218; Matter of De Peyster, 210 N. Y. 216, 225; Matter of Tishman v. Sprague, 293 N. Y. 42, 50). “ It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning.” (McCluskey v. Cromwell, 11 N. Y. 593, 601.) Our Legislature has made it the law that one who has procured, outside this State, a divorce not recognized here as valid, may not have a distributive share of her spouse’s estate. No court may refuse to enforce the statutory penalty for that interdicted conduct.
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 eases denied dower to the wives, the Starbuck opinion putting it on the grdund 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 [351]*351citing the Starbuck holding, stated the rationale a little differently : that is, that the foreign divorce, while not binding on the husband, nevertheless brought it about that the marriage was completely dissolved as to the wife.
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 [352]*352in Caldwell v. Caldwell (298 N. Y. 146 [1948], supra) decided nineteen years after subdivision (b) of section 87 first saw the light of day in 1929. The total invalidity, for all purposes including estoppel, of divorces granted pursuant to Mexico’s peculiar laws, had been earlier determined by this court in 1939, in Vose v. Vose (280 N. Y. 779, supra) and in Querze v.Querze (290 N. Y. 13 [1943], supra). But, so far as we can find, the nullity of such Mexican divorces first became the subject of judicial decision in this State in 1930 in Matter of Alzmann v. Maker (231 App. Div. 139, 141) handed down in 1930, or, at least, that is the earliest of the decisions cited to this court in the Vose, Querze and Caldwell briefs on appeal. It is, therefore, a practical, if not an absolute impossibility, that the Legislature in 1929 had in mind or intended any differences between Mexican divorce decrees and other invalid divorce decrees.
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.