In re the Estate of Dorsett

New York Surrogate's Court

In re the Estate of Dorsett

136 Misc. 236, 242 N.Y.S. 232, 1930 N.Y. Misc. LEXIS 1292

DecidedJanuary 8, 1930

StatusPublished

This text of 136 Misc. 236 (In re the Estate of Dorsett) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Dorsett, 136 Misc. 236, 242 N.Y.S. 232, 1930 N.Y. Misc. LEXIS 1292 (N.Y. Super. Ct. 1930).

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Opinion

O’Brien, S.

The pétitioner, claiming to be the husband of the decedent, makes application to revoke letters of administratioA theretofore issued to he respondent, a brother of decedent. A hear[237]*237ing was had before me and from the testimony taken it appears that on the 12th day of August, 1909, the petitioner and the decedent, for the sole purpose of having a marriage ceremony performed, went to the State of New Jersey and were married and immediately after the marriage ceremony returned to the State of New York where they lived together as husband and wife up to the year 1919. Subsequently, on March 22, 1922, the decedent procured a decree of divorce in the State of New Jersey against the petitioner. The decedent after procuring such divorce returned to New York to live. The petitioner has always resided in New York since the date of his marriage. The decree of divorce obtained by the decedent in the State of New Jersey was procured without personal service of process upon the petitioner. Service was made by publication. Petitioner did not appear or answer. The decree, so far as its effect in this State is concerned, is, therefore, void for lack of jurisdiction. (Haddock v. Haddock, 201 U. S. 562; Atherton v. Atherton, 181 id. 155; Olmsted v. Olmsted, 190 N. Y. 458; Matter of Kimball, 155 id. 62; Williams v. Williams, 130 id. 193.) Nor does the fact that the parties were married in the State of New Jersey change the situation in any respect (Dean v. Dean, 241 N. Y. 240; Ball v. Cross, 231 id. 329), because it has been established that they were domiciled in New York prior to and subsequent to the marriage. The status of the petitioner as husband of the decedent has, therefore, never changed. He is entitled as such to share in the distribution of the estate and to letters of administration. The application is, therefore, granted. Submit decree vacating the letters of administration heretofore issued and directing the issuance of letters to the petitioner upon his qualifying pursuant to law.

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O’Brien, S.

The pétitioner, claiming to be the husband of the decedent, makes application to revoke letters of administratioA theretofore issued to he respondent, a brother of decedent. A hear[237]*237ing was had before me and from the testimony taken it appears that on the 12th day of August, 1909, the petitioner and the decedent, for the sole purpose of having a marriage ceremony performed, went to the State of New Jersey and were married and immediately after the marriage ceremony returned to the State of New York where they lived together as husband and wife up to the year 1919. Subsequently, on March 22, 1922, the decedent procured a decree of divorce in the State of New Jersey against the petitioner. The decedent after procuring such divorce returned to New York to live. The petitioner has always resided in New York since the date of his marriage. The decree of divorce obtained by the decedent in the State of New Jersey was procured without personal service of process upon the petitioner. Service was made by publication. Petitioner did not appear or answer. The decree, so far as its effect in this State is concerned, is, therefore, void for lack of jurisdiction. (Haddock v. Haddock, 201 U. S. 562; Atherton v. Atherton, 181 id. 155; Olmsted v. Olmsted, 190 N. Y. 458; Matter of Kimball, 155 id. 62; Williams v. Williams, 130 id. 193.) Nor does the fact that the parties were married in the State of New Jersey change the situation in any respect (Dean v. Dean, 241 N. Y. 240; Ball v. Cross, 231 id. 329), because it has been established that they were domiciled in New York prior to and subsequent to the marriage. The status of the petitioner as husband of the decedent has, therefore, never changed. He is entitled as such to share in the distribution of the estate and to letters of administration. The application is, therefore, granted. Submit decree vacating the letters of administration heretofore issued and directing the issuance of letters to the petitioner upon his qualifying pursuant to law.

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Bluebook (online)

136 Misc. 236, 242 N.Y.S. 232, 1930 N.Y. Misc. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-dorsett-nysurct-1930.

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