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

TWO WIDOWS FIGHTING FOR ONE DOwER-DECIsION
IN FAVOR OF WIDOW NO.2.
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 foows:-John and
Rebecca Black married in 1925, lived together
twelve years, and had two children. In 1897, Mrs.
Black left her husband After living in practical &C.
lbacy for dozen years, the husband having made
an unsuccessful application to the Legislature OF New
York, had recourse to q Court of Chancery of New
jersey, where his wife had been residing, and finally
procured decree divorciDg him vincuio mqfri-
noni- wilul desertion, by husband or wife, for Eve
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 was filed in Sep
tember 1850, and the decree entered in 1850. John
Black shortly thereafter took to himself another
spouse in the person Of lady, who became Mrs.
Elizabeth Black. Elizabeth and Rebecca severally
ask letters of administration Johns only true and
lawful wife. The Sur ogate delivered long AM
elaborate decision in the premises this morning, of
which we present abstract. The Surrogate re-
garos all the material facts necessary to give tbs
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 grits
Of the decree pronounced cannot therefore be inves
tgated coliateray In another case since, under tae
United states statutes and decisions the credit
IL required TO be given in all the States to judicial
record that IL possesses in the State where il
ren0efed. The main question IN the case. then
TO he whether the court had jurisdiction over the
person Of the deiendant-tbe rule of law this
point DelDg that no one Ia bound personally by judi
cia proceedings without express or constructive
tce In case such notice be not actually made, recital
in the record asserting the due service OF process is
not conclusive otherwise the right TO impeach a re.
cord would be no right at ALL Did the defendant
ceive legal notice Of the suit and il she therefore
bound by the Judgment The defendant asserts
h,H 10 49,
which the subpoena against her was issued and the
Sheriffs return # "served," having prior TO this
time lived in Belleville Nj. On this point there is
conflicting testimony but the Surrogates view Of
the law Goes not compel hi 10 pass the question
of fact AZ issue. He decides that -
!. The record is presumptiye evidence Of jurisdic
1on.
2. Mrs. Rebecca Black had fixed and permanent
residence in New jersey at the time of the instu.
ton Of the suit for divorce.
3. BY the New jersey statute subpoena TO appear
and answer msy he served ON The defendant person
ally, or by leaving copy thereof at her usual Place
OF residence, and the testimony and return Of
served" in the sherir's handwritng-he being
desd-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
not be mpeached coaterally, but only by an action
for false return on an application to the court
issuing the process by party interested in the
cause.
tive notice even II the return were improbable
since II has not been impesched.
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
position Of freedom, ard that future wife might
be placed in an unhappy position If the proceedings
we've irregular, never walked up 10 q sense OF her
dormant rights till her husband was ia the grave
and his property about to be distributed"
AZ between a party thus chargeable with notice
and with idches, ana entirely innocent and with
out notice, there will he no struggle to invalidate
this decree-the iniendment Of the law in favor of
the Que service Of process the truth of the Shers
return, and the jurisdiction of the Court, rendering
the judgment, will he strengthened and not weakened
ana even II the defendants were allowed to impeach
the officers return, she would he put to 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 at her residence in Bellevle was
sufficient, and that such service has not been dgap
proved. This was constructive notice in law, aud
without passing upon the question Of personal ser
vice, j also satisfied that she had not notice in
fact Of the pcndency Of the proceedings. must,
therefore, bolu that fhe decree of divorce is valid.
and that the second marriage OF the intestate with
Elizabeth Black was lawful and regular. AS the
widow Of the dect - .he is entitled TO letters Of
administration, and 70 distriou.ive share of his
estate.