p. 267JAMES S. WATSON, Respondent, v. ELIZABETH W. WATSON, Appellant.Headnote
Divorce—judgment—motion to set aside after death of plaintiff.Where a judgment for divorce has been obtained by the plaintiff against the defendant, and the plaintiff has subsequently died; held, that a motion, made upon papers served upon his administrator, to set aside the judgment for fraud and irregularity, was properly denied.
Appeal from an order at Special Term, denying a motion made by defendant to set aside a judgment of divorce. On the 3d of September, 1863, the plaintiff obtained a judgment of divorce against the defendant. The plaintiff died in June, 1872, intestate, and on the 31st of January, 1873, letters of administration were granted to Frederick A. Watson. In Hay, 1873, the defendant made a motion against the said administrator, to set aside the judgment on the ground of fraud, irregularity, etc. The motion was denied, and the defendant appealed.
Ira Shafer, for the appellant.
J. M. Smith, for the respondent.
This is an appeal from an order of the court at Special Term, denying the motion of defendant to set aside a judgment of divorce, entered September 3d, 1863. The plaintiff, who obtained the divorce, died in the fall of 1872, intestate, and the motion is now made, upon service of papers upon his administrator. The grounds are fraud and irregularity. If the facts stated in the moving papers are true, there certainly ought to be some relief for the defendant; but the question before us is whether that relief can be obtained on motion, and on notice simply to the administrator of the estate. We think it cannot. No authority is cited for such practice. The administrator has no power to consent to setting aside the judgment. He has no control or authority over it. There is no pecuniary recovery to be enforced by him. The decree simply dissolves
p. 268the marriage relation and disposes of the custody of the children, both which are questions in which the administrator,
as such, has no legal interest whatever. It is said that he is interested in the question whether the defendant is entitled, as widow, to a distributory share of the estate, or is cut off therefrom by the judgment of divorce; but in that question, as administrator, he has no legal interest.. The distribution, alter payment of debts, is made by decree of the surrogate, and the representatives cannot properly be said to have any legal interest, whether the decree shall award the whole to the children of the intestate, or distribute a portion to defendant. We cannot avoid the conclusion that the motion was properly denied. An action, in the nature of a bill of revivor, bringing before the court all the heirs-at-law, and other persons interested in the real estate left by the decedent, and such persons as may have taken conveyance thereof subsequent to the decree, as well as his representatives, seems to us the only mode in which the relief sought can properly be obtained.
The order must be affirmed.
Daniels and Westbrook, JJ., concurred.
Order affirmed.