Homer Lindgren died intestate. The effect of the order appealed from is to award the whole of his estate to his daughter and to exclude from all interest in that estate, decedent's second wife. That result follows if we accept the holding of the Surrogate, made on petition of the daughter, that decedent's Florida divorce from his first wife, and his subsequent marriage to cross-petitioner-appellant, were invalid. We think it settled that the daughter had no right to attack that second marriage. During decedent's life, the courts would not have listened to any assertion by him, as against his second wife, that his marriage to her was void (Krause v. Krause, 282 N.Y. 355.) After his death his daughter, claiming his property as his distributee, was, as to such property, subject to the same disability; she was barred, as was her father before her, from denying that cross-petitioner is entitled to the property rights which come from marriage. (Matter of Morrisson, 52 Hun 102, affd. 117 N.Y. 638; Melchers v. Bertolido, 118 Misc. 196; Elliott v.Wohlfrom, 55 Cal. 384; Jacobs, Attack on Divorce Decrees, 34 Mich. Law Review 975.) None of the cases cited as contrary authority are in conflict with the rule herein stated, since in none of those cases was the party who disputed the divorce or the second marriage, a grantee, transferee or successor, as to the property involved, of the person who had obtained the unlawful divorce.
The order should be reversed and appellant's cross petition granted, with costs.
LOUGHRAN, RIPPEY, CONWAY and THACHER, JJ., concur with LEWIS, J.; DESMOND, J., dissents in opinion in which LEHMAN, Ch. J., concurs.
Order affirmed. *Page 26