This proceeding is brought by the substituted administrator with the will annexed and substituted trustee of the estate of David Bradley, deceased, for an adjudication of the rights, if any, of Gertrude H. R. Bradley, a mental incompetent, in realty of which the decedent died seized, commonly known as No. 9 Whitford Avenue, Nutley, New Jersey.
David Bradley and Gertrude H. R. Bradley were married on September 18, 1914, in Newark, New Jersey, and lived in this State. On April 30, 1929, Mrs. Bradley was adjudged insane and was committed to the Essex County Hospital for Mental Diseases, at Cedar Grove, New Jersey, where she has been continuously and is presently confined.
In June, 1931, David Bradley instituted suit for and obtained a decree of divorce in the State of Nevada "on the grounds of the insanity of the defendant existing for more than two years prior to the commencement of said action." The final decree dated August 10, 1931, recites that the plaintiff had resided in Nevada for more than six weeks and that the defendant appeared by guardian ad litem appointed by the Nevada court. Following the divorce, Bradley returned to New Jersey and resided here until his death on December 1, 1943.
In his will, dated September 26, 1941 and probated in Essex County, he declared himself a resident of New Jersey. He bequeathed the sum of $20,000 to defendant Laurette Aldea Gagnon, and the residuary estate was bequeathed and devised to his executor and trustee in trust to use all or such part of the net income, and in addition such part of the corpus as the trustee might in his absolute discretion deem necessary and proper, for the care, comfort, maintenance, support and recreation of his "divorced" wife during her life; and upon her death, the remainder is to be paid to Laurette Aldea Gagnon, if
living; otherwise, to the defendant, Hospital and Home for Crippled Children, of Newark.
The plaintiff has entered into a contract to sell the real estate, which contract provides that if the title is unmarketable, the purchaser shall be entitled to the return of his deposit. The purchaser has declined to take title, claiming it unmarketable. It is for this reason that the plaintiff seeks a determination of the interest of Gertrude H. R. Bradley in the premises.
The final decree of divorce obtained in the State of Nevada is not entitled to full faith and credit in this State. The parties were married in this State and domiciled here. The defendant, Gertrude H. R. Bradley, has continuously resided and is still a resident of this State. Because of her mental incompetency, she obviously could not appear in the proceeding in the Nevada court and that court did not acquire jurisdiction over her by the appointment of a guardian ad litem. After the divorce the decedent returned to this State, resumed his residence here and died here. It is patent that his temporary sojourn in Nevada was for the express purpose of obtaining a divorce for a cause which is not a ground for divorce under the laws of this State. The parties having been domiciliaries of this State, the Nevada court had no jurisdiction over the res or the person, and its decree is not entitled to validity in this jurisdiction. R.S. 2:50-35. Hollander v. Hollander , 137 N.J. Eq. 70 (E. & A. 1945); Cox v. Cox , 137 N.J. Eq. 241 (E. & A. 1945); Giresi v. Giresi , 137 N.J. Eq. 336 (E. & A. 1945); Isserman v. Isserman , 138 N.J. Eq. 140 (E. & A. 1946); Hubschman v. Hubschman , 140 N.J. Eq. 284 (E. & A. 1946); Williams v. North Carolina , 317 U.S. 287, 63 S. Ct. 207; 87 L. Ed. 279 (1941); 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Estin v. Estin , 334 U.S. 541: 68 S. Ct. 1213 (1948); Kreiger v. Kreiger , 334 U.S. 555, 68 S. Ct. 1221 (1948).
When a testator makes provision for his wife and it appears from the entire will that such provision was intended in lieu of dower and that it would be inconsistent for her to enjoy both, the wife must make an election. Moore v. Moore , 84 N.J. Eq. 39 (Ch. 1914); affirmed, 85 N.J. Eq. 150 (E. & A.
1915); Caravetta v. O'Brien , 98 N.J. Eq. 199 (Ch. 1925); Federal Trust Co. v. Ost , 120 N.J. Eq. 43 (Ch. 1936); affirmed, 121 N.J. Eq. 608 (E. & A. 1937). If the wife is a mental incompetent, this court may direct a general guardian to make an election for her and to execute the consent necessary to effectuate a conveyance. R.S. 3:23-1. Brooklyn ...