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District Court of Appeal, First District, Division 1, California.


Civ. 13383.

Decided: April 30, 1948

Jay A. Darwin and Clifton E. Brooks, both of San Francisco, for appellant. Weinmann, Moffitt & Quayle, of Alameda, and Cyril Viadro, of San Francisco, for respondent.

Lewis Warren Smith died testate May 28, 1945. His olographic will is dated April 7, 1942, at which time the testator was 86 years of age. By it he appointed the Wells Fargo Bank as ‘administrator’, bequeathed $500 to the Widows and Orphans Fund of a designated lodge of Masons, bequeathed ‘to my wife the sum of Five Dollars,’ and left to the Branford Baptist Church of Connecticut the balance of his estate. Amy Nichols (Smith) filed a claim alleging that she was the surviving wife of the decedent, and claiming two-thirds of the estate under § 41 of the Probate Code. The executor filed its petition for a settlement of its first and final account and for final distribution. After a trial, the probate court found that Amy Nichols (Smith) was the widow of decedent, approved the account, and ordered the residue of the estate distributed one-third to the Branford Baptist Church, and two-thirds to Amy Nichols (Smith). The Branford Baptist Church appeals from that portion of the decree determining that at the time of decedent's death Amy Nichols (Smith) was his surviving wife, and distributing to her two-thirds of the residue of the estate.

It is an admitted fact that respondent married decedent in January, 1926, and separated from him some time between 1930 and 1933. it is also admitted that in November, 1938, she married Nichols, with whom she lived for many years. Upon Smith's death, and upon discovering that he had left a substantial estate, respondent claimed to be his surviving wife, thus not only admitting but urging that her marriage to Nichols was bigamous. The order from which this appeal is taken was made on August 1, 1946. On August 6, 1946, Ralph Nichols, under circumstances hereafter mentioned, secured from Amy E. Nichols, respondent herein, a decree annulling his marriage to Amy. Thereafter, respondent moved this court to accept as conclusive evidence on this appeal the judgment roll of the annulment proceeding. That motion to take such additional evidence was granted, and the judgment roll in the annulment proceedings, plus a portion of the reporter's transcript, were added to the record on appeal.

The basic contention of appellant is that the finding that respondent is the surviving widow of decedent is totally unsupported by evidence. In this connection appellant contends that, when respondent admitted her subsequent ceremonial marriage to Nichols, a presumption arose that such marriage was valid, and that the Smith marriage had been dissolved by divorce or annulment. It is urged that respondent did not rebut that presumption. It is also urged that the trial committed prejudicial error in excluding evidence of certain statements made by decedent prior to his death to intimate friends in which he referred to respondent as his ‘ex-wife’ and in which he declared that they were divorced.

Respondent testified that she married Smith in Los Angeles in January, 1926; that they separated ‘I imagine about 1930 or 1933, something like that * * * around 1932 or 1933’; that thereafter they never lived together; that on November 16, 1938, she married Nichols; that some time prior to her marriage to Nichols she and Nichols visited Smith in Southern California and she asked Smith for a divorce; that Smith told her, ‘I have a divorce,’ and asked her why she wanted the information; that she told him that she wanted to marry Nichols, and Smith told her to go ahead and marry him; that Smith did not tell her where he had secured the divorce; that when she asked him how he had secured a divorce without letting her know, Smith replied: ‘I didn't know where you were * * * All you have to do is publish it in the papers'; that she ‘supposed’ that he had procured the divorce in San Francisco; that she asked him for the divorce papers and he replied that they were in his safe deposit box; that she married Nichols in reliance upon the information so secured from Smith. Counsel for respondent then informed the court that he had investigated the records in San Francisco, Los Angeles and Lake Counties, and in Reno, and that he had been unable to locate any record of a divorce between respondent and decedent. The court suggested that the matter be continued for further investigation, and this was done. At this first hearing the Branford Baptist Church was not represented by counsel, but subsequently such counsel was retained and represented appellant. The probate judge seemed to feel that the burden rested upon appellant to produce a record of the divorce, if one existed. No such record of a divorce was found by either party. It was discovered that respondent had been married and divorced at least once before she married Smith, and that, in her application for a license to marry Nichols, she falsely averred that she had never been married before, and misstated her age. At the final hearing counsel for appellant stated that he had been unable to discover a record of a divorce between Smith and respondent, but offered to show by the testimony of three witnesses, intimates of Smith, that they had heard decedent refer to respondent frequently as ‘my ex-wife,’ and repeatedly told them that he had divorced respondent. Counsel for respondent first objected to this evidence, then withdrew his objection, but stated that in his opinion such evidence would not ‘serve any useful purpose.’ The trial court stated: ‘Just to end the matter, I will sustain the objection to it’—although the objection had been withdrawn. It seemed to be the attitude of counsel for respondent and of the trial court that appellant was limited to evidence of a record of a divorce, and that if no such record were produced the court must decide in favor of respondent.

This last hearing was held on May 20, 1946, and at its conclusion the judge stated that he would order two-thirds of the estate distributed to respondent. The court did not prepare its formal order until August 1, 1946. In the meantime the following occurred: On January 9, 1946, Ralph Nichols, the husband of respondent, commenced a divorce proceeding against her in San Francisco, alleging that he had been married to respondent since November 17, 1938, and alleging cruelty in general terms. Thereafter, on June 6, 1946, Ralph Nichols filed an ‘Amended Complaint Annulment,’ in which he requested an annulment on the ground that when he married respondent she was married to Smith. Thereafter, on July 26, 1946, respondent, through one of her present counsel, filed a written admission of service of the ‘amended’ complaint and made a formal appearance in the annulment action. On August 6, 1946, the court entered its judgment annulling the Nichols marriage on the ground that respondent was the wife of Smith when she married Nichols. The judgment recites that the cause came on for hearing ‘on the ___ day of August, 1946, upon plaintiff's complaint taken as confessed by the defendant, whose default * * * has been duly entered, and upon proof taken’ the court finds that when respondent married Nichols she was married to Smith. Appended to the clerk's transcript of the annulment proceeding is a reporter's transcript. It is dated September 6, 1946, which, obviously, is in error, because the judgment was entered August 6, 1946. Neither Ralph Nichols nor his wife, the respondent, testified at that hearing. Counsel for the husband simply introduced the judgment of the probate court in the present case, that had been made five days before, and upon that record the annulment was granted. During a colloquy between the court and counsel at the hearing the trial judge stated that ‘Nichols testified some time ago,’ and counsel agreed that that was so. There is no minute entry of any prior hearing, and no reporter's transcript of any such prior hearing.

After appellant had perfected its appeal, respondent moved this court to add to the record on appeal the record of the annulment proceeding, contending that such decree conclusively supported the finding of the court in this probate proceeding that respondent was the widow of decedent. This court granted the motion to take this additional evidence.

That is the state of the record. On such a record we are convinced that the interests of justice, and the law, compel a reversal. In the first place, we are convinced that the trial court was incorrectly of the opinion that, under the evidence, the burden was on appellant to prove that decedent had divorced respondent. While it is true that upon proof of respondent's marriage to Smith a presumption arose of the continuation of that marriage, when respondent admitted her later marriage to Nichols, the presumption arose that the Smith marriage had been terminated by divorce or annulment. This presumption is part of the basic presumption of innocence, because to presume otherwise would be to presume a party was guilty of bigamy. The rule is stated as follows in Kelsey v. Miller, 203 Cal. 61, at page 90, 263 P. 200, 212: ‘The mere proof of a prior marriage and the continued life of both spouses is not sufficient to make a case against a second ceremonial marriage. There must be a further showing that the first marriage had not been set aside by judicial decree. There is a very strong presumption in favor of the legality of a marriage regularly solemnized.’

In 10 Cal.Jur. p. 754, § 67, the rule, supported by several cases, is stated as follows: ‘The presumption of innocence of a person accused of bigamy prevails over and neutralizes the presumption of continuance of life of first wife or husband, being aided in this by the strong presumption in favor of the legality of a marriage regularly solemnized.’ This rule has been approved and applied in many cases. (In re Estate of Hughson, 173 Cal. 448, 160 P. 548; Wilcox v. Wilcox, 171 Cal. 770, 155 P. 95; In re Pusey's Estate, 173 Cal. 141, 159 P. 433; In re Estate of Baldwin, 162 Cal. 471, 123 P. 267; McKibbin v. McKibbin, 139 Cal. 448, 73 P. 143; Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L.R.A. 411, 52 Am.St.Rep. 180; Immel v. Dowd, 6 Cal.App.2d 145, 44 P.2d 373; In re Morgan, 106 Cal.App. 602, 289 P. 647; see, particularly, § 1963(30) Code of Civ.Proc.)

Under this rule there can be no doubt that upon proof of the later ceremonial Nichols marriage, the burden was upon respondent to prove that the Smith marriage had not been terminated either by divorce or annulment. Respondent does not challenge this rule but contends that she met the burden, and that there is sufficient evidence to rebut the presumption. She relies first upon the terms of the will by which the testator left $5 ‘to my wife.’ There was no evidence at all as to the identity of this person. There may have been a subsequent marriage and the ‘wife’ referred to may have been such subsequent wife, or the testator may have used the word ‘wife’ to mean his ‘ex-wife.’ Certainly this bequest, standing alone, does not rebut the presumption in question. Respondent next makes much of the inability of appellant to produce a record of a divorce between respondent and decedent. That is a purely negative element. The burden was upon respondent, not upon appellant, and appellant's failure to produce a record of a divorce does not prove that none was secured. Respondent's counsel stated that he had searched the records in Los Angeles, San Francisco and Lake Counties, and in Reno, but that no record of such a divorce had been found. Appellant's counsel stated that he had searched the record in 56 of the 58 counties and had found no such record of a divorce. That evidence does not rebut the presumption of the validity of the Nichols marriage. No attempt was made to determine where decedent had resided through the years. The unreliability of records of marriage and divorce was demonstrated in this case because the state has no official record of the Smith marriage. It must be remembered that respondent married Nichols in 1938, according to her own testimony, in sole reliance upon decedent's statement that he had secured a divorce from her. She had no further information of any kind in 1945 when Smith died and she discovered that he had left a substantial estate, and then claimed to be his wife, thus urging that her marriage to Nichols was bigamous. Under such circumstances, if the Nichols annulment decree be disregarded for the moment, to say the least it is very doubtful if there is any substantial evidence or any reasonable inference from the evidence to rebut the presumption of the validity of the Nichols marriage and to sustain the finding that respondent is the surviving wife of Smith.

But even if there is ‘some’ evidence that might be interpreted to be contrary to the presumption, it must be conceded that such evidence is very weak indeed. This being so, any error in excluding evidence that might support the presumption takes on added significance. There can be no doubt that the trial court committed error in excluding the declarations of decedent made to intimate acquaintances on numerous occasions that he was divorced from respondent, and that she was his ‘ex-wife.’ Such declarations of relationship constitute an exception to the hearsay rule recognized by statute in this state. Section 1870, subsection 4, of the Code of Civil Procedure provides that evidence may be given of: ‘The act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person.’ See, In re Estate of Morgan, 203 Cal. 569, 265 P. 241; In re Estate of Friedman, 178 Cal. 27, 172 P. 140; In re Estate of Strong, 54 Cal.App.2d 604, 129 P.2d 493.

Respondent concedes, as she must, that it was error to have excluded these declarations of relationship, but contends that such error was not prejudicial because respondent had admitted that decedent had declared to her that he had secured a divorce and ‘no amount of additional evidence to the same effect could do her so much damage as her own testimony on that subject.’ (Res.Br., p. 6.) In other words, the respondent contends that the rejected testimony was merely cumulative, and that its rejection was not prejudicial. That is an unrealistic approach to the question. As already pointed out, the probate judge seemed to be of the opinion that the burden to show a divorce rested upon appellant, and seemed to feel that that burden could only be met by record evidence of a divorce. In both assumptions the trial judge was wrong. Moreover, this respondent had to offer some reason for marrying Nichols, otherwise she would be guilty of deliberate bigamy. Smith was not here to deny her statements. Nichols, although present at the conversation, was not produced nor was his absence explained before the probate court. To say the least, the evidence as to whether there was or was not a divorce from Smith was most tenuous and uncertain, with a strong presumption that a divorce had been secured. Thus, to have excluded the decedent's own statements on this subject made to several persons on many occasions was obviously error of a most prejudicial nature.

It is clear, therefore, that the decree must be reversed unless it is supported by the Nichols annulment decree. Respondent contends that this decree completely removes from the case the presumption that the Nichols marriage was valid because it determines conclusively that the Nichols marriage was void from the beginning. It is obvious that the Nichols annulment decree cannot be used to bolster the previously secured probate decree. While it is true that appellant, not having been a party to the annulment action, cannot collaterally attack the decree (Mitchell v. Automobile Owners Indemnity Underwriters, 19 Cal.2d 1, 118 P.2d 815, 137 A.L.R. 923; Wells Fargo & Co. v. City and County of San Francisco, 25 Cal.2d 37, 152 P.2d 625), it is also true that by virtue of express statutory provision such a decree is not binding on any one except the parties to it. Section 86 of the Civil Code provides: ‘A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.’ This section was applied in Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655. There the parties entered into a support agreement in contemplation of a divorce in which it was provided that certain rights of the wife would terminate if he remarried. The parties were divorced and the wife remarried in Mexico. Later the Mexican marriage was annulled in Los Angeles. She attempted to enforce the provision of the support agreement on the theory that the annulment decree conclusively established that she had never lawfully remarried. The court first quoted § 86 of the Civil Code, supra, and then stated (at page 467 of 24 Cal.App.2d, at page 658 of 75 P.2d): ‘Plaintiff relies upon section 1908 of the Code of Civil Procedure, which prescribes the effect of judgments. The last-named section, however, concerns judgments in general and must give way to the provisions contained in section 86 of the Civil Code, which relates expressly and specifically to a judgment by which the nullity of a marriage is decreed. Regardless of the question of the right of the superior court of Los Angeles to render a judgment of nullity of the marriage contracted in Mexico in so far as it concerns plaintiff and Bergstedt, a question we consider unnecessary to decide, we are satisfied that the decree is not conclusive as to defendant in the present litigation, is not binding upon him, and does not have the effect of obligating him to carry out the terms of the property settlement agreement.’ See, also, In re Estate of Gosnell, 63 Cal.App.2d 38, 146 P.2d 42.

Respondent makes a totally unconvincing argument that § 86 only applies to ‘voidable’ and not to ‘void’ marriages. The argument is obviously without merit. Section 86 is in the same Article and Chapter as is § 82, permitting an annulment on the ground of a valid pre-existing marriage of one of the spouses, and clearly applies to that subsection of § 82 as well as to those subsections of § 82 referring to the annulling of voidable marriages. Under § 86 of the Civil Code, and the cases interpreting it, it must be held that the Nichols annulment decree is not binding in the present case.

The wisdom of § 86 of the Civil Code is well illustrated in the present case. Nichols started a divorce proceeding against respondent in January, 1946. That was after the death of Smith. Then, after the probate judge on May 20, 1946, had indicated that he was going to find that respondent had been married to Smith, Nichols ‘amends' by alleging facts warranting an annulment. That was on June 6, 1946. Mrs. Nichols was then represented by one of the same counsel who represents her here. He filed a formal appearance for her in the annulment action on July 26, 1946, and then defaulted. On that date the probate judge had not yet filed his decree in the probate proceeding. Admittedly the probate judge was not informed of the pendency of this annulment proceeding, nor were counsel for appellant so notified. The probate decree was entered August 1, 1946. Five days later counsel for Mr. Nichols appeared in the annulment court and, so far as the record shows, solely on the ground that the probate court had decreed that respondent was married to Smith, secured an annulment. Then counsel for Mrs. Nichols produce the Nichols annulment in this court and contend that it is conclusive in the probate proceeding. To so hold would make a laughing stock of the law. A better example of trying to lift one's self by his bootstraps cannot be imagined. Obviously, in fairness, in justice, in equity, and under the law, no such result should follow in this case.

The portion of the decree appealed from is reversed.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.