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District Court of Appeal, Second District, Division 3, California.


Civ. 15840.

Decided: October 08, 1947

Jesse Bach Porter, of Los Angeles, for appellant. MacDonald, Wallace, Cashin & Arrington and W. W. Wallace, all of Los Angeles, for respondent.

Jose Maria Abila died in Los Angeles County in December, 1943, leaving a will which was duly admitted to probate. He left a parcel of real estate to Juana G. Lopez and the remainder of his estate to his sister, Josefa Abila, and his niece, Rebecca Camacho. Some months after the admission of the will to probate, appellant herein, Emelina V. Abila, filed her petition to determine heirship under section 1080, Probate Code, alleging that she married decedent in 1910 and remained married to him until his death; that the estate was of the value of less than $2,500; that she was entitled to have it assigned to her under section 640 et seq., Probate Code, and prayed that she be decreed to be the widow of decedent and that she be granted any other proper relief. The hearing was opposed by the administrator-with-will-annexed, the issue as to appellant's claimed widowhood was tried, the court made a finding that appellant was not the widow of decedent and entered a decree adjudging that she was not entitled to take anything under the will. She appeals.

There was evidence of the following facts: Appellant married decedent on March 31, 1910. They had one child, who had grown to maturity at the time of the trial and who testified on behalf of appellant. Appellant and Jose Abila separated. Abila obtained an interlocutory decree of divorce from appellant in March, 1913, but no final decree. The administrator-with-will-annexed of his estate petitioned the court for the entry of a final decree nunc pro tunc, but this petition was denied. In September, 1915, appellant went through a ceremony of marriage with one Gus Moser and this purported marriage was ended by final decree of divorce in appellant's favor, entered in May, 1930. Appellant testified that she resumed marital relations with Abila in the year 1930 and continued them until his death in 1943.

The foregoing facts as to plaintiff's marriage to Moser were found by the court in the instant proceeding, but there was no finding that appellant had or had not married Jose Maria Abila. The court, however, made the following finding: ‘The Court finds that at the time of the death of Jose Maria Abila the said Emelina V. Moser was the divorced wife of Gustave Moser, and was not the wife of Jose Maria Abila arter her marriage to Gustave Moser, and was not his widow at the time of his death.’ As a conclusion of law, the court found that ‘Emelina V. Moser was not the widow of Jose Maria Abila, deceased, at the time of his death, but was a divorced wife of Gustave Moser.’

Respondent advances two theories, either of which, it is contended, furnishes support for the judgment: (1) that the decree of divorce in the Moser action conclusively determined, as between the parties to that action and also as between the parties to the instant proceeding, that appellant and Moser were legally married; and (2) that by virture of that adjudication and of the presumption of validity of appellant's marriage to Moser, it will be presumed that appellant never married Abila or that a final decree of divorce was signed in the Abila action and later lost. We cannot give such sweeping effect to the decree in the Moser case. Respondent relies upon the rule stated in Petry v. Petry, 47 Cal.App.2d 594, 118 P.2d 498, 499, that ‘It is well established in this state that a final decree of divorce conclusively determines, as between the parties thereto, that they were legally married; and this regardless of the true fact * * * and seemingly despite the most flagrant fraud practiced by one of the parties.’ In Estate of Hughes, 80 Cal.App.2d 550, 182 P.2d 253, the rule was applied and a judgment of divorce was given effect as a final adjudication of the validity of the marriage of the parties, binding upon them and upon others who were parties to the action and in privity with one of the parties to the divorce. The principle of these cases would be applicable here if the controversy were between the parties to the Moser action or their privies. Such, however, is not the case. Jose Maria Abila was a stranger to that action and those who claim under his will are likewise strangers. The rule, as quoted from the Petry case is not extended to third persons unless they stand in privity with one of the parties. This was held directly in Blumenthal v. Blumenthal, 97 Cal.App. 558, 561, 275 P. 987. It is unnecessary to quote from the text or to list the supporting authorities cited in that opinion. Since any claimed estoppel would be lacking in mutuality, the adjudication implicit in the Moser decree that appellant was legally married to Moser is not binding upon either of the parties hereto as claimants to the Estate of Abila.

The judgment is not sustainable upon the second ground urged by respondent. A presumption arose from proof of the Moser marriage that it was a valid marriage, but this was not a conclusive presumption and it was dispelled by proof of the prior marriage to Abila and the fact that no final decree of divorce had been entered in the action instituted by the husband. Respondent would have us presume that a final decree was signed but that it was not entered because it was lost. A sufficient answer is that there are presumptions that official duty has been regularly performed and that the law has been obeyed (Code Civ.Proc., Sec. 1963(15), (13)). Where the record shows no entry of a final decree of divorce it constitutes affirmative evidence that none was entered and no presumption can be indulged to the contrary.

It is suggested that the presumption of validity of the Moser marriage, also, is proof that appellant was never married to Abila, but the presumption cannot prevail since the latter marriage was established by the testimony of appellant and a duly recorded certificate of marriage. The interlocutory decree in the Abila divorce case was an adjudication of the validity of the marriage and its subsistence to the date of the decree, under the principle stated in Petry v. Petry, supra. By that adjudication the parties to the action were bound and the parties to the instant proceeding are likewise bound, since they both lay claims to the Estate of Jose Maria Abila. It was established by the evidence, beyond peradventure, that appellant was married to Abila and that the marriage was not dissolved except by his death.

It is suggested further by respondent that appellant admitted having married one Ortega before she married Abila and that there was insufficient proof to show that that marriage had been dissolved. Appellant, while admitting the marriage, testified that it had been annulled, although no record evidence of the annulment was produced. Her testimony was fortified by the presumption of the validity of her marriage to Abila and by the adjudication of the validity of that marriage in the interlocutory decree.

The findings and judgment to the effect that appellant is not the widow of Abila rest solely upon the effect erroneously given to the decree in the Moser action. The finding that appellant is not the widow of Jose Maria Abila is without any support in the evidence.

The judgment is reversed for further proceedings in accordance with the views herein stated. The attempted appeal from the order denying motion for new trial is dismissed.

SHINN, Acting Presiding Justice.

VALLÉE, J. pro tem., concurs.

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