The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-01-11
Suyrogate's Court.
Before A. w. Bradford.

TWO WIDOWS FIGHTING FOR ONE DOwER-DECIsION
IN FAVOR OF WIDOW NO. z.
SATURDAY, Jan. 10, lS57.-In the matter of the
Estate Of John Black, deceased-The litigants in
this case are two persons each of whom claim
dover in the estate OF John Black, deceased, his
widow. The facts are briefly as follows:-John and
Rebecca Black married in 1926, lived together
twelve years aud had two children. In 1897, Mrs.
Black left her husband After living in practical ce-
hbacy for dozen years, the husband, having made
an unsuccessful application to the Legislature OF New
York, had recourse to Court Of Chancery of New
jersey where his wife had been residing and finally
procured a decree divorciDg him vinculo mqtri-
monii wiltul deserton, by husband or wife, for FIVE
consecutive years being sufficient ground for divorce
under the New Jersey statutes, provided the de-
PENDANT shall have been an actual resident of the
State during those years. The bill filed in Sep
tember 1850, and the decree entered in 1850. John
Black shortly thereafter took to himself another
spouse in the person Of a lady, who became Mrs.
Elizabeth Black. Elizabeth and Rebecca severaly
ask letters Of administration Johns only true and
lawful wife. The Sur ogate delivered a long an
elaborate decision in the premises this morning, of
which we present an abstract. The Surrogate re-
garIs all the matcrl, facts necessary TO give tha
court which granted the divorce jurisdiction, al
legged in the bill and established by the evidence aud
all the proceedings regular on their face. The Srits
Of the decree pronounced cannot therefore be inves
tigated coaterally Ia another case since under tae
United states statutes and decisions, the credit
IL required 10 be given in all the States to judicial
record that i, possesses in the State where it
renoefed. The main question IN the case. then
TO he whether the court had jurisdiction over the
person Of the Geiendant-tbe rule of law this
point being that no one Ia bound personally by jadi
cal proceedings without express constructive
tice. In such notice be not actually made tai
in the record, asserting the due service OF process
not conclusive, Otherwise the right TO impeach
cord would be no right at all. Did the defendant
ceive legal notice Of the suit and Is she therefore
bound by the Judgment The defendant asserts
that she in Connecticut between the time in
which the subpoena against her was issued and the
time lived IN Reeyille n. J. On this point there is
conflicting testimony but the Sdrrogates view Of
the law no. compel hi 10 pass the question
of fact AZ issue. He decides that
I, The record is presumpuve evidence Of jurisdic
Aon.
2. Mrs. Rebccca Black had fixed and permanent
residence In New jersey al the time of the institu.
ton Of the suit for divorce.
3. by the New Jersey statute subpoena to appear
and answer may be served on the defendant person.
ally or by leaving copy thereof at her usual pace
OF residence, and the testimony and return of
served" In the Sherif's bandwritng-he being
dead-iaise. the presumption that the statute was
complied with.
4. As matter Of proof, the return Of the officer
s itself evidence Of the facts alleged in IT, and can
not be impeacbed coaterally, but only by action
for q false return on an application 10 the court
issuing the process by party interested in the
cause.
g. There il sufficient proof of valid and construc.
tive notice even II the return were improbable
since II has not been impeschod.
6. The court must have less reluctance In conclud
ing Mrs. Black by the decree Of divorce. in view Of
the fact that she mad notice Of the existence Of the
suit end the rendition OF the verdict Of the decree
II might have been opposed, on good cause shown,
but she made neither sign nor opposition, and
though conscious that her husband wished 20 obtain
8 position Of freedom, ard that future wife might
be placed In an unhappy position II the proceedings
we've irregular, never walked up 10 a sense OF her
dormant rights till her husband was in the grave
aud his property about 90 be Distributed"
IA between party thus chargeabe with notice
and with idches, ana entirely innocent and with
out notice, there will he struggle To invalidate
this decree-the intendment OF the law in favor OF
the Que service Of process, the truth Of the Shcrs
return, and the jurisdiction Of the Court, rendering
the judgment will be strengthened and not weakened
even II the defendants were allowed TO impeach
the officers return. she would he put 10 the most
strict convincing and undeniabe proof that service
had not been made in either Of the modes allowed
by the statute OF New Jersey. am Of opinion that
service OF copy nj her residence in Belleve was
sufficient, and that such service has not been d5ap-
proved. This was constructive notice in law, aud
without passing upon the question Of personal ser
vice, am also satisfied that she had not notice in
fact Of the pchdency Of the proceedings. must,
therefore, bou that 'hc decree of divorce is valid,
ana that tic eecOnl marriage of the intestate with
Elizabeth Hack was lawful and regular. AS The
widow Of the dect SCI she is entitled TO letters Of
administration, and 60 q distrou.iye share of his
estate.