Dimpfel v. Wilson

Boyd, C. J., delivered the opinion of the Court. This appeal is from a decree dismissing the bill of complaint filed by the appellants against the appellees in the CircuitCourtfor Talbot County and also a special case stated, hereinafter referred to. In 1893 Frederick P. Dimpfel died leaving a last will and testament, by the eighth clause of which he devised and bequeathed his property to William R. Martin m trust to pay one-half of the net income to his son,Frederick P. Dimpfel, Jr., for life, and in the event of his death in the lifetime of his wife, Teresa G., to pay the income to her for the support of herself and children during her widowhood, and until the youngest child attained the age of twenty-one years, and made certain other provisions not necessary to mention. Then by the same elause he directed the other half of the net income to be paid to his son, William O’S. Dimpfel, for life, and in case he died in the lifetime of his wife then that said half of the income ³³¹ should be paid to his wife, Maria P., during her life or widowhood for the support of herself and any child or children William might leave.

That clause thus concludes: “In the event, however, that my said son William should die leaving any child or children, or the child of any child or children, I direct that said one-half of the income aforesaid to be paid to the said Maria P. Dimpfel during her widowhood and until the youngest child shall have attained the age of twenty-one years, at which time I direct the said one-half.of my estate to be given to said child or children of my said son William upon the express condition that said child or children shall secure to the said Maria P. Dimpfel one-third of the income she had before been receiving and pay the same during her natural life or widowhood.” Provision was also made that in the event of William not leaving any child, his half should go to Frederick, after the death or marriage of Maria P., upon the same conditions and limitations set forth as to his own half. William and Maria P. were married in the city of Washington, D. C., on September 5th, 1890, and had one child— Maria Trimble Dimpfel — who is still living and is thirteen years of age. William died September 7th, 1904, and William R. Martin having died, George W. Wilson was by decree of the Court substituted in his place. William had been previously married to Minnette G. Dimpfel who obtained a divorce a vinculo matrimonii from him on February 27th, 1890, in the State of New York.

In the decree of divorce it was prpvided that “it shall not be lawful for the said William O’S. Dimpfel, the defendant, to marry any other person until said Minnette G. Dimpfel, the plaintiff, shall be actually dead.” She was living, as we understand she still is, when William and Maria P. were married in the District of Columbia — said Maria P. having after the death of William married Edward Woodall. The bill alleges that by reason of the provision in the decree and the law of the District of Columbia, in force at the time of the alleged marriage, the marriage between Maria and William was unlawful, and said Maria was not the lawful ³³² wife of William and Maria T. was not his lawful child or heir, or capable in law of taking through him, or under said will, any portion of the said estate. It is then alleged that the one-half of the estate set apart for William and his family would pass, under the trusts of the will, to be held for Frederick and his family in the same manner that the one-half was originally set aside for them, and there is a prayer that it may be so decreed. Prior to the filing of the bill a special case stated was instituted in the Circuit Court for Talbot County, wherein Maria G. Woodall and husband and Maria T. Dimpfel, by her nex; friend were plaintiffs, and George W. Wilson, as trustee under the will of Frederick P. Dimpfel, Sr., and as administrator of the estate of William, was defendant.

There was also filed with it what is called the testamentary paper of Frederick P. Dimpfel, dated December 20th, 1892. The parties to that special case stated submitted to the Court the construction of the last clause of item eight, of the will, the legal effect of the second testamentary paper and the rights of Maria P. Woodall and Maria T. Dimpfel. The bill alleges that the complainants were not made parties to the case stated and that no adjudication of the points raised in it should be had, other than in this suit, and prays that the hearing of it may not be had until the proofs are taken and the hearing had under this bill. After answers were filed testimony was taken in open Court and the case was heard, resulting in a decree dismissing the bill which decree was subsequently amended by also dismissing the case stated.

From the decree as amended this appeal was taken. The most important question raised in the case is the effect of the marriage of William and Maria in the District of Columbia, notwithstanding the provision in the decree of divorce in the New York Court prohibiting William from marrying during the lifetime of his former wife, and we will therefore first consider that. It cannot be denied that the general rule is that such a' prohibition has no extra-territorial effect. That seems to be recognized very generally throughout this coun ³³³ try.

See 14 Cyc., 729, and 9 Am. & Eng. Ency. of Latv, 854, where many cases can be found cited in the notes to those volumes. It was held in Elliott v. Elliott, 38 Md. 357 , that the Act of 1872, ch. 272, formerly in force in this State, was not penal in its nature and therefore was not an ex post facto law, and hence it applied to all cases where a divorce a vinculo, for the causes mentioned, should be decreed after the' Act went into effect — although the evidence related to acts done prior to that time. That was all that was involved in that cáse.

The reasoning of the Court was very clear and the conclusion is not in conflict with the general rule above stated. The statute provided that “in all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the Court may, in its discretion, decree that the guilty party shall not contract marriage with any other person during the life time of the other party; in which case the bonds of matrimony shall be deemed not to be dissolved, as to any future marriage of such guilty party, contracted in violation of such decree, or in any prosecution on account thereof.” This Court said that the statute did not impose any new punishment or penalty upon the adulterer, but it merely left him where Jre was before the decree, and withheld from him relief which he was not as a matter of right entitled to. Having entered into the marriage contract, he was not entitled to be relieved from it, excepting in so far as the law furnished a remedy, and the statute only gave relief to the innocent party, provided the Court, in its discretion, so directed. But it was concluded that such a law was not desirable in this State, and it was repealed by the Act of 1888, ch. 486.

It was an anomalous condition,that the law should provide that the bonds of matrimony should be deemed dissolved as to one of the contracting parties, but should be deemed not to be dissolved as to the other. In Garner v. Garner, 56 Md. 127 , it was held that the part of the decree which prohibited the wife from marrying again was invalid, because she was not a resident of this State and was not brought into Court by personal service. That was because such a provision in a decree is a decree in ³³⁴ personam and does not merely determine the matrimonial status of the parties. As these are the only cases on the subject in this State, it will be seen that there is nothing in the decision of this Court which could affect the general rule announced above.

The policy of this State, as manifested by the repeal of the previous law, was at the time of this marriage that no such prohibition should be imposed and there can be no reason for its Courts construing such a statute to be extra-territorial. . But what should properly govern us in this case is the law of the District, when the marriage took place, and the construction placed upon the statute of New York, where the decree was passed. The Act' of Congress of June, i860, ch. 158, U. S. Statutes at large, vol. 12, p. 59, provides not for a decree of nullity, as the appellants incorrectly contend, but as a ground for divorce, that when “such marriage was contracted while either of the parties thereto had a former wife 01-husband living, unless the former marriage shall have been lawfully dissolved, and no restraint shall have been imposed upon the party contracting such second marriage.” That Act was in effect when the marriage now in question took place. When we remember that the rule is, as stated in 14 Cyc., 729, that: “A statute prohibiting the re-marriage of a divorced person in the lifetime of the former spouse does not operate where the-divorce was [obtained in another State; nor does it operate against a re-marriage in another State, even though the parties go there to evade the law of their domicile,” it cannot be presumed that Congress intended this Act, passed for the District of Columbia, to apply to such restraint imposed by a Court outside of the District.

The Act of Congress did not declare a marriage so made null and void, but only provided that such a marriage, as the Act had relation to, would be a ground for divorce. There is a marked difference between the marriage of a person, who has been previously married, and who has not been divorced from a spouse who is still living, and that of one who has been divorced but was prohibited by a decree from re-marrying — the one case would be ³³⁵ clearly polygamous, while the other would not be under the general rule, if the second marriage occurred outside of the State where the decree was passed. If in this case the decree had in terms limited the restriction upon William to re-marrying within the State of New York, this Act of Congress unquestionably would not have applied to a marriage by him in the District of Columbia, because there would have been no restraint imposed upon him that would have prevented such marriage. And while it is true that the decree did not on its face so limit the restriction, it was passed after the Court of Appeals of that State had construed the statute not to apply to a marriage outside of the State.

In VanVoorhis v. Brintnall, 86 N. Y. 18 (decided in 1881) that Court, after reviewing many decisions, announced the law for that State in language not to be misunderstood. It was there decided that when a marriage between E and B had been dissolved, on the ground of the adultery of the latter, a child of a second marriage, born in New York, was legitimate and entitled to share with the children of the first marriage in a devise to the issue of B — although the decree of divorce adjudged that he should not re-marry during the lifetime of E, and thereafter he went to Connecticut and married I, both being residents of New York, and, having gone out of the State for the purpose of evading its laws, they returned the same day and resided in New York. It was further held that the statutes prohibiting the second marriage of the person divorced on the ground of adultery, during the lifetime of the former spouse, and declaring such second marriage void, had no application, as they were in the nature of a penalty, and had no effcect outside of the State, in the absence of express' terms showing a legislative intent to give them such effect. That case was approved in Thorp v. Thorp, 90 N. Y. 602 , and Moore v. Hegeman, 92 N. Y. 521 — both of which were also priorto this marriage.

There was, then, no restraint upon William from marrying in the District of Columbia imposed by the decree passed when he was divorced. The decree provided that the marriage between Minnette and William “be dissolved, and the ³³⁶ same is hereby dissolved accordingly, and the said parties are and each of them is freed from the obligations thereof,” It is true that it then went on to say that it should be lawful for Minnette to