(dissenting). This is an accounting proceeding in which is sought a determination that by reason of a so-called Mexican “ mail-order divorce ” the accounting administratrix was not entitled to be a distributee of her deceased husband’s, estate and that as a result the decedent’s next of kin, all of whom are citizens and residents of Germany, are entitled to take his entire estate.
The statute which we must construe is subdivision (b) of section 87 of the Decedent Estate Law which provides as follows: “ No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * to a spouse who has procured without the state of New York a final decree or judgment dissolving the marriage with the decedent, where such decree or judgment is not recognized as valid by the law of this state; * * '
We are all agreed that at the time the statute was enacted in 1929, the Legislature did not have in mind Mexican “ mail-order *354divorces ”. That is borne out by the note of the commission which reads in part as follows: “ New. Without limitation as to effect, it is intended to be a declaration of the existing law. ’ ’ It is further borne out by the cases cited in the note of the commission, all of which involved divorce actions in sister States. The only cases cited affecting invalid divorce decrees were Starbuck v. Starbuck (173 N. Y. 503) and Monroe Co. Sav. Bank v. Yeoman (119 Misc. 226) which involved attempted divorces in Massachusetts and Ohio respectively. Prior to 1929, the law was settled that a wife, who had obtained a divorce decree in a sister State not recognized as valid by this State, was estopped to deny its validity and could assert no right of dower in the estate of her deceased spouse. (Starbuck v. Starbuck, supra; Monroe Co. Sav. Bank v. Yeoman, supra-, see, also, Matter of Morrison, 52 Hun 102, affd. 117 N. Y. 638; Matter of Swales, 60 App. Div. 599, affd. 172 N. Y. 651.)
In amending the Decedent Estate Law in 1929, the Legislature granted to a surviving spouse the right to a distributive share of the estate of the deceased spouse, but, in subdivision (b) of section 87, accompanied that right with the then existing common-law limitation that a spouse who had procured an invalid divorce decree in a sister State was estopped to deny its validity. The Legislature did not use the word “ estoppel ” but that is the obvious substance and purpose of subdivision (b) of section 87 as indicated by the quoted commission note.
The attempt here, therefore, by the Attorney General is to have subdivision (b) of section 87, a true estoppel statute, stretched so that it may cover a situation not intended to be covered therein and not within the contemplation of the Legislature when it was enacted, for it is only since the enactment of subdivision (b) of section 87, and since 1929, that we decided the cases of Vose v. Vose (280 N. Y. 779); Querze v. Querze (290 N. Y. 13), and Caldwell v. Caldwell (298 N. Y. 146) in which we held that a Mexican mail-order divorce estopped no one and was but a worthless piece of paper.
We had the same question presented to us in Caldwell v. Caldwell (supra). We posed that question in the first paragraph of our opinion as follows (p. 147): “ We have presented to us the question of whether any effect may be given by our courts to a divorce obtained by mail from a court of a foreign nation at the *355instance of one domiciled in this State.” We went on to answer it and determined for the reasons therein stated, that the mailing of a collusive agreement violating our declared public policy (Domestic Relations Law, § 51, forbidding any “ contract to alter or dissolve ” a marriage by a husband and wife) and obtaining in return in the mail a paper purporting to he a “ divorce'” might not be the foundation for the creation of any rights; that there was not the slightest semblance or color of jurisdiction justifying action by the Mexican court; that its purported decree was wholly valueless; that it was a nullity from which no rights of any kind might spring and that neither party was estopped in any manner. The same method used in Caldwell v. Caldwell, has again been used, except that here the parties: first, disregarded their ‘ ‘ mail-order divorce ’ ’ obtained in 1944, by continuing to live together as husband and wife until 1946, and, second, had our Supreme Court in Queens County declare it void and of no effect in a decree after personal service upon the deceased and a general appearance by him.
In our State, marriage, while a civil contract, confers a status upon those who enter into it, and the State is interested in the creation, continuance and dissolution of that status. Seventy-five years ago, we said: “ It partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” (Wade v. Kalbfleisch, 58 N. Y. 282, 284.) As a result, the People through their legislative representatives have declared the applicable public policy of our State in section 51 of the Domestic Relations Law, and have forbidden any “ contract to alter or dissolve ” a marriage by a husband and wife.
Under our system of law, in the United States, judicial power to grant a divorce is based upon domicile. Without that, there is no jurisdiction to act. (Williams v. North Carolina, 317 U. S. 287, 325 U. S. 226; Caldwell v. Caldwell, 298 N. Y. 146,149, supra.) That does not mean, of course, that by comity and under circumstances which do not offend the public policy of this State, we may not recognize divorces granted in foreign countries to one residing there even though domiciled here. We have accorded such recognition but only when it was not contrary to our declared public policy. (Gould v. Gould, 235 N. Y. 14, 29 [1923].)
*356By reversing, we depart from the basic reasoning of the Querze and Caldwell cases (supra) — a departure limited to a narrow class of cases, but, nonetheless, a departure. We now say that a Mexican mail-order divorce, obtained pursuant to a collusive agreement violating the public policy of our State, nevertheless, may be the foundation for the exclusion of the surviving husband or wife from a distributive share in the estate of the deceased.
By reversing, we make it necessary for an attorney to advise a client (cf. Caldwell v. Caldwell, supra, p. 147; Matter of Anonymous, 274 App. Div. 89) in a contemplated application for a Mexican mail-order decree based solely upon a collusive contract violating our State public policy, that if both enter into such contract (since both must agree and sign) the client will insure the fact that if the marital partner survives, that partner will have no distributive share in the client’s estate. An attorney will be under the necessity of advising his client that if he or she disregards the public policy of this State and enters into such a collusive contract to dissolve the marriage and obtains a mail-order divorce upon it, while it will not affect the marriage obligation in this State, it will immediately put into operation and fix forever rights of descent and distribution of the survivor of the two spouses; that that will be true regardless of what either or both of them may do thereafter and regardless even of a decree of our Supreme Court declaring the Mexican mail-order divorce void and of no effect, upon direct attack with personal jurisdiction of both parties. There may be no repentance.
The order should, be affirmed, with costs.
Loughran, Ch. J., Lewis, Dye and Froessel, JJ., concur with Desmond, J.; Fuld, J., concurs in separate opinion; Conway J., dissents in opinion.
Ordered accordingly.