Grossman's Estate. Descent and Distribution- -Widow's Exemption Separation -Divorce Obtained in Nevada-Validity of Parties. -Second Wife Exceptions were filed to the widow's appraisement by two children of decedent. It appeared that the deceased lived with his wife until 1911, when articles of separation were duly executed between himself and his wife. After the agreement of separation, decedent went to Nevada, where he remained less than a year, and obtained a divorce in that State from his wife, who remained at their former domicile in Pennsylvania. Decedent returned to Pennsylvania and married claimant in 1914. He died subsequently and the second wife claimed the widow's exemption. Held: That the first wife, having waived the right, even if legally entitled to the exemption, was barred by her agreement of separation; that the divorce obtained in Nevada was invalid, as the Court of that State was without jurisdiction, so that claimant was not the widow of decedent, and that the children were entitled to the whole estate. The Nevada Court being without jurisdiction of the defendant in the divorce proceeding, its decree had no extra-territorial effect whatever as to persons or property outside the State, so that the validity of the divorce could be raised by any party in interest and was not confined necessarily to the defendant in the decree. Exceptions to Widow's Appraisement. No. 74 June Term, 1916. O. C., Butler County. J. M. Galbreath, for exceptants. REIBER, P. J., May 31, 1916.-This matter heard on exceptions filed to the widow's appraisement in said estate by two of the children of said decedent. Mrs. Alice C. Grossman claims the legal exemption as the widow of John S. Grossman, deceased. John S. Grossman was married in Butler County, Pennsylvania, to Laura L. Croll, with whom he lived in said county until the year 1911, when articles of separation were duly executed between himself and wife. After the agreement of separation decedent went to the State of Nevada, where he remained less than a year, obtained a divorce from his first wife, who remained at their former domicile in this county, and thereupon Grossman returned to Pennsylvania and married claimant on the 20th day of September, 1914. Grossman subsequently died and the second wife now claims the widow's exemption. The first wife, having waived the right, even if legally entitled to the exemption, is barred by her agreement of separation, and the exceptants, the children of decedent, contend that said divorce is invalid; that Alice C. Grossman is not the widow of said decedent, and, therefore, that exceptants, the only living children and heirs of decedent, are entitled to the whole of his estate. Under the Federal cases the divorce obtained by Grossman in the State of Nevada is void in the State of Pennsylvania, for the reason that the Nevada Court was without jurisdiction of the defendant. "Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create a greater obligation upon the nonresident to appear. Process sent to him out of the State and process published within are equally unavailing in proceedings to establish his personal liberty." Pennoyer vs. Neff, 95 U. S., 714. "As distinguished from legal domicile, mere residence within a particu Grossman's Estate. lar State of the plaintiff in a divorce cause brought in a Court of such State, is not sufficient to confer jurisdiction upon such Court to dissolve the relation existing between the plaintiff and the non-resident defendant.” Andrews vs. Andrews, 188 U. S., 14. The Courts of one State may not grant a divorce against an absent defendant to one who has not acquired a bona fide domicile in that State, and the same rule applies to one who has removed thither solely for the purpose of acquiring a domicile and obtaining a divorce for a cause which would have been insufficient in the State from which he removed. Andrews vs. Andrews, 188 U. S., 14. In the celebrated case of Haddock vs. Haddock, 201 U. S., 562, the principle was recognized that the States, at the time of the adoption of the Constitution, possessed full power of the subject of marriage and divorce, and the Constitution delegated no authority to the central government in regard thereto, and the destruction of the power of the States over the dissolution of marriage as to their own citizens cannot be brought about by the operation of the full faith and credit clause of the Constitution of the United States. The Courts, however, may regard the effectiveness of foreign decrees, since they are at liberty, as suggested in the Haddock case, to recognize them upon principles of comity. In this State it is held in Colvin vs. Reed, 55 Pa., 375, that the law of domicile implies that it is the actual domicile of both parties, or was when the party left it. Where the injured party seeks a new domicile and the domiciles are, therefore, actually different, there is no greater reason why the husband's new domicile should prevail over the wife's than hers over his; neither should draw the other within a foreign jurisdiction; nothing but the possession of the person of the wife before or at the time of the proceeding can warrant another State to subject her to its jurisdiction. The injured party in the marriage relation must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common domicile of either. When it is once determined that a Court has not jurisdiction, notice or even process duly served cannot give vitality to the judgment it may pronounce. It is null and void at least to any extra-territorial effect. Reed vs. Elder, 62 Pa., 308. To the same effect is the decision of Platt's Appeal, 80 Pa., 501. Peter Fyock Estate, 135 Pa., 522. Hein's Estate, 22 Sup. Ct., 31. It is, however, contended by claimant that exceptants are not parties of interest to the judgment of divorce and, therefore, have no standing to question the decree in divorce, and that the Courts of this State should recognize such decree as valid against everybody except the defendant in the decree. The Nevada Court being without jurisdiction of the defendant in the divorce proceeding, its decree had no extra-territorial effect whatever as to persons or property outside the State. "Even in questions of property the situs must be within the State to subject it to jurisdiction and beyond the particular property so situated, no right can be affected by a foreign jurisdiction." Colvin vs. Reed, 55 Pa., 380. Platt's Appeal, supra, involved the distribution of decedent's estate in Pennsylvania, having obtained a divorce in Michigan, his wife domiciled in Wisconsin. Decedent returned to this State and re-married. The Supreme Court awarded the whole of his estate to first wife and two children, deny Grossman's Estate. ing the exemption to second wife, the Court saying: "That the decree of divorce of the Court in Michigan was nugatory and void, so far, at least, as it affected the rights of parties in the State of Pennsylvania." The principle, as contended for by claimant, as applied to the children 2s strangers having no rights at the time the judgment was rendered which were affected thereby, might prevail if this were a proceeding primarily and directly attacking the judgment itself, especially since one of the parties is now deceased. However, when property interests in this State are involved and such as are affected by the consequences of the divorce, we are of the opinion that the children and heirs of deceased have such an interest, if not for the purpose of attacking the divorce within itself, at least they have such interest as to question its validity to ascertain whether the property in which they are interested will pass to those legally entitled thereto. Now, May 31st, 1916, the exceptions filed are sustained, and the widow's appraisement is set aside and disallowed. AARON E. REIBER, Farley vs. Sefler. Malicious Prosecution-Proof of Substantial Damages-Verdict for 64 Cents -New Trial. A new trial will be granted where, in an alleged malicious prosecution, plaintiff proved substantial damages, but the jury brought in a verdict for 64 cents, as in such a case a verdict for nominal damages should not be sustained. Motion for New Trial. No. 2484 April Term, 1915. C. P. Allegheny County. Edward K. Trent, for plaintiff. E. F. Duffy, for defendant. EVANS, J., April 14, 1916.-The plaintiff brought suit for an alleged malicious prosecution, and there was a verdict for the plaintiff for six and one-fourth (64¢) cents. Plaintiff proved substantial damages. For instance, he proved attorney's fees and time lost in coming to court. It has been ruled by our Supreme Court on several occasions that where the plaintiff proves substantial damages, a verdict for nominal damages should not be sustained, and for that reason, and that reason alone, a new trial is granted in this case. Thaw's Estate. Descent and Distribution- -Trustee's Account- -Corpus- -Income- -Legatee for Life. At the audit of a trustee's account under a will, in the distribution of stock belonging to the estate, where the question was as to what constituted corpus to be held by the trustee and what constituted income to be distributed to the legatee for life, if the stock in part represents what was capital at the date of the inception of the trust, and in part income accumulated since that time, it is to be divided between income and corpus in the proper ratio. Fourth Account of the Fidelity Title & Trust Company of the Estate of Alice Cornelia Thaw, Under the Will of William Thaw. No. 435 September Term, 1913. O. C. Allegheny County. James G. Marks, for exceptant. Patterson, Crawford, Miller & Arensberg, and Chantler & McClung, for trustees. OVER, P. J., June 5, 1916. — William Thaw, who died in 1889, by his wil gave the income of a portion of his estate to his daughter, Alice Cornelia Thaw, for life, and the question here is what constitutes corpus to be held by the trustee, and what income to be distributed to the legatee for life. When William Thaw died, he owned a number of shares of stock of the Standard Oil Company of N. J., and it then also held, as trustee for its stockholders, stock of subsidiary companies, some of which were capitalized out of the surplus earnings of the parent company accruing prior to William Thaw's death, and some out of surplus earnings accruing partly before and partly after his death. The legatee for life claims as income all the stock held by the trustee which was distributed to it in pursuance of a decree of the Supreme Court of the United States, entered December 1st, 1911, in a proceeding instituted to compel the dissolution of the Standard Oil Company of N. J., leaving only the stock of the Standard Oil Company of N. J., stripped of the ownership of its stock in the subsidiary companies in the trust as corpus. The argument to sustain this claim is that this distribution was in effect a distribution by the Standard Oil Company of N. J. of its reserve profits which had accrued since the death of William Thaw. The answer to it seems to be that the Standard Oil Company of N. J. held these stocks in trust for its stockholders, the legal title only being vested in it; the directors declared no dividends of surplus earnings, and the purpose of the decree of Court, under which the distribution was made, was to dissolve an illegal trust and vest the legal as well as the equitable title in the owners of the stock. The position taken by counsel for the trustee, is that the stock in each subsidiary company is to be separately considered. If the stock represented what was capital, or capital and profits, accumulated prior to the time this trust came into existence, it is still capital and, therefore, corpus. If, however, the stock has been paid for out of earnings accumulated since the inception of the trust, it is income and belongs to the legatee for life. If the stock in part represents what was capital at the date of the inception of the trust, and in part income accumulated since that time, it is to be divided between income and corpus in the proper ratio. We think this position is well taken. In Moss' Appeal, 83 Pa., 264, Mr. Justice Paxson said (page 269): "As a general rule, nothing earned by a corporation can be regarded as profits until it shall have been declared to be so by the corporation itself, acting by its board of managers. The Thaw's Estate. fact that a dollar has been earned gives no stockholder the right to claim it until the corporation decides to distribute it as profit. The wisdom of such distribution must of necessity rest with the corporation itself. From motives of prudence and self-interest it is frequently desirable to add all or a portion of the earnings to the capital. This is sometimes necessary as a basis of credit for more enlarged operations. It is often a wise exercise of discretion for a corporation to strengthen itself in this way, and with such discretion a stockholder cannot interfere. His only remedy is by an appeal to the ballot at the election for directors. But where a corporation, having actually made profits, proceeds to distribute such profits amongst the stockholders, the tenant for life would be entitled to receive them, and this without regard to the form of the transaction. Equity, which disregards form and grasps the substance, would award the thing distributed, whether stock or moneys, to whomsoever was entitled to the profits." This case was followed and approved in Connolly's Estate (No. 1), 198 Pa., 137, where it was held that, “A person having a life estate in the stock of a corporation, is not entitled to the enhanced value of the stock due to undivided surplus profits. Such enhanced value belongs to the remainderman. Where dividends are declared on the surplus earnings, the legatee for life is entitled only to the proportion of such earnings as accrued subsequently to the testator's death." And in Smith's Estate. 140 Pa., 344, Mr. Justice Clark said (page 352): "It is well settled in this State that when the stock of a corporation is by the will of a decedent given in trust, the income thereof for the use of a beneficiary for life with remainder over, the surplus profits which have accumulated in the lifetime of the testator, but which are not divided until after his death, belong to the corpus of his estate; whilst the dividends or earnings made after his death are income, and are payable to the life tenant no matter whether the dividends be in cash, in scrip or stock." Park's Estate, 173 Pa., 190, cited by counsel for the legatee for life, where it was held that, "A profit realized by the foreclosure of a mortgage and a resale of the property bought in by the trustee was income and profits within the meaning of the will and belonged to testator's daughter, the legatee for life and not to the remaindermen," is of doubtful authority, as it was not followed in Graham's Estate, 198 Pa., 216. And in Neel's Estate (No. 2), 207 Pa., 446, it was held, Park's Estate being cited by counsel for the appellant, that, "Where trustees in order to protect the interest of the trust estate buy in land at a receiver's sale and afterwards sell the same at an advance, the profits properly belong to the corpus of the estate, and is not to be distributed as income. |