In re the Estate of Torkkila

198 Misc. 265, 98 N.Y.S.2d 460, 1950 N.Y. Misc. LEXIS 1785

• Court: New York Surrogate's Court
• Decided: June 30, 1950
• Status: Published

Opinion

Henderson, S.

The decedent herein died-a resident of Bronx County on May 10, 1950.

The petitioner upon this application for letters of administration alleges that he is the decedent’s husband.

The decedent’s son by a prior marriage to one John Austin, disputes this allegation.

It appears that the decedent and John Austin were married in the State of New York in 1923. In 1946, the decedent instituted an action for divorce in Nevada and obtained a decree in her favor. John Austin appeared in such action and submitted himself to the jurisdiction of the court. Thereafter, the decedent returned to the State of New York where she married the present petitioner.

The objectant in support of his position has shown to the satisfaction of the court that neither of the parties to the divorce action was a bona fide resident of Nevada.

In these circumstances, although the Nevada decree is binding upon the parties to the action (Sherrer v. Sherrer, 334 U. S. 343), the objectant may, to maintain his rights of inheritance in the estate of his deceased parent, attack such a decree (Matter of Johnson, 301 N. Y. 13).

Accordingly it must be determined that the Nevada decree is invalid and that the objectant is entitled to the estate of his mother as her sole distributee. The application for the issuance of letters of administration to the petitioner is therefore denied.

Settle decree.