IN RE: FILTZER'S ESTATE.

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

IN RE: FILTZER'S ESTATE. HARDER v. ALLEN.

Civ. 16379.

Decided: October 15, 1948

Voorhees, Stewart & Voorhees, of Los Angeles, for appellant. Leonard Wilson and Arnold L. Leader, both of Los Angeles, for respondent.

This is an appeal from an order of the Superior Court of Los Angeles County, sitting in probate, directing the administrator with the will annexed of the estate of Francis W. Filtzer to pay to petitioner and respondent, Mary Louise Harder (hereinafter referred to as petitioner), a family allowance for the support of Gregory Francis Filtzer, the minor child of petitioner and decedent, pursuant to the provisions of section 680 of the Probate Code.

Francis W. Filtzer died on or about May 9, 1947, leaving as his surviving spouse Evelyn R. Filtzer. During the year 1945 Evelyn R. Filtzer had filed an action for divorce against Francis W. Filtzer in which an interlocutory decree was granted in September, 1945, but the action was dismissed in April, 1946. In November, 1945, a suit for divorce was instituted by Hans Frederick Harder against Mary Louise Harder, petitioner herein, and an interlocutory decree was entered on January 3, 1946. On or about January 13, 1946, Mary Louise Harder and Francis W. Filtzer went through a purported marriage ceremony in Tijuana, Mexico, and thereafter lived together as husband and wife in California. As a result of this union a child was born on July 22, 1947. Relying upon section 85 of the Civil Code, which provides that ‘The issue of a marriage which is void or annulled or dissolved by divorce is legitimate’, petitioner sought an allowance for the support of the minor child, together with attorney's fees.

After hearing, the trial court made an order, in which it found that petitioner and decedent ‘entered into a marriage ceremony in the State of Morales, Republic of Mexico, and that said marriage between said decedent and said petitioner, Mary Louise Harder, was, by said Mary Louise Harder, entered into in good faith, and that said marriage has never been dissolved, annulled or otherwise set aside. That following said marriage, said petitioner, Mary Louise Harder and said Francis W. Filtzer lived together in the City of Avalon, County of Los Angeles, State of California, as husband and wife. * * *.’ The court further found that petitioner was entitled to a ‘reasonable allowance out of the above entitled estate for the maintenance of said child, for the payment of doctor and hospital bills, and for the employment of attorneys to protect the interest of said child.’ The court directed the administrator to pay petitioner the sum of $275 for hospital and doctor bills, $500 attorney's fees, and $100 per month until further order of the court.

As grounds of appeal appellant asserts (1) that no marriage was in fact proved; (2) that if a marriage took place, it was not entered into in good faith on the part of either party and the child is therefore not legitimate under section 85 of the Civil Code; and (3) that the court was without jurisdiction to order payment of attorney's fees for petitioner in this proceeding.

The only testimony relative to the marriage was that of petitioner, who stated that she and the decedent went through a marriage ceremony before an official in Tijuana, who delivered to her what purported to be a certificate of marriage in the Mexican language; that thereafter she received through the mail a purported official translation in English of the certificate. Each of these documents was introduced into evidence over objection. She further testified with reference to the issue of good faith, that decedent told her that ‘we could not get married anywhere in the State of California, but that we could go to Mexico and it would be valid in any state’; that she relied upon this statement, went through the ceremony in reliance upon the same, and after the marriage lived with Mr. Filtzer as his wife, and used his name.

In support of his first contention, appellant urges that there was no evidence as to the laws of the State of Morales, Mexico, and it must therefore be presumed that the laws of that state are the same as California; that no evidence was presented that the parties had obtained a license, that the person performing the ceremony was authorized by law so to do, or of his official capacity or identity; and that the court erred in receiving the purported marriage certificate and translation in evidence. The testimony of petitioner, however, is undisputed that she and decedent actually went through what purported to be a marriage ceremony and received a certificate to that effect. The offspring of a marriage ‘null in law’ for lack of a license was held legitimate in Re Estate of Shipp, 168 Cal. 640, 144 P. 143. It was not error to receive in evidence the purported marriage certificate and translation thereof. The authorities cited by appellant, to the effect that a marriage certificate does not prove itself, that there must be proof of the signature of the person by whom it purports to have been signed and of his authority to perform the ceremony (People v. Le Doux, 155 Cal. 535, 102 P. 517; People v. Jordan, 72 Cal.App. 406, 237 P. 757), would be applicable if the certificates were being offered as proof of the recitals contained therein; but the evidence was not received for that purpose. It was received, as stated by the trial court, not to prove a valid marriage, but to support the testimony of petitioner that she went through a ceremony at that time and place, received the certificate at that time, and believed that she was legally married. In other words, the documents were received in corroboration of petitioner's claim and testimony that she acted in good faith, believing that she could be, and was, legally married.

It may be conceded that the prevailing weight of authority requires that in order to legitimize the issue of a bigamous marriage such as the one with which we are here concerned, under statutes identical with or similar to section 85 of the Civil Code, it must appear that at least one of the parties to such attempted marriage entered into the same in good faith, believing it to be a valid marriage. See In re Atkins, 151 Okl. 294, 3 P.2d 682, 84 A.L.R. 499, 501; 3 Cal.Law.Rev. 161; 19 So. Cal.L.Rev. 457, 458. In the present case the trial court found that the marriage was entered into in good faith by Mary Louise Harder, and that the parties to the marriage thereafter lived together as husband and wife. In attacking this finding, appellant asserts that the testimony of Mary Louise Harder as to her good faith is so inherently improbable as to be entitled to no credence, and that this court should disregard her statement and set aside the finding of the trial court based thereon. With this contention we cannot agree. The question of good faith on the part of respondent was a question of fact to be determined by the trier of fact, and as evidenced by his findings, the trial judge was convinced by substantial evidence that respondent entered into the marriage relationship in good faith, believing that she was the lawful wife of the deceased, and relying upon his statements to her that their marriage in Mexico was a or would be a valid one. Her testimony in this respect finds support in the fact that upon their return to California the parties lived together and held themselves out as husband and wife.

Furthermore, it is to be remembered that the law favors legitimacy. In Re Estate of Shipp, 168 Cal. 640, 144 P. 143, where the parties failed to secure a license, the court in referring to the same statutory language used in Civil Code section 85, said: ‘The appellant seeks to give to this clause a very limited interpretation; his contention being that the term ‘marriages null in law,’ as here used, includes only the marriages which are subject to an action for annulment on one of the grounds specified in section 82 of the Civil Code. We think the provision should not be construed so narrowly. The statute was passed with the generous and kindly purpose of relieving children, to some extent, from the harsh consequence of illegitimacy—a status for which the children affected are in no degree morally responsible. The section should be liberally construed. Blythe v. Ayres, 96 Cal. 532, 582, 31 P. 915 19 L.R.A. 40.'

In urging that the trial court erred in allowing attorney's fees as part of the order granting a family allowance, appellant relies upon the rule that attorney's fees are not ordinarily recoverable in the absence of exceptional circumstances, such as a special agreement or special statutory provision, or in certain equitable actions. In re Estate of Marrie, 18 Cal.2d 191, 114 P.2d 591. However, in the present case, the fees were awarded, as stated by the trial judge, as part of the allowance, because they were ‘necessary for his (the child's) support and maintenance, just the same as room and board or anything else.’ The court further stated that the fees were allowed solely for the services rendered in connection with the petition for family allowance.

Appellants cite no authority holding that attorney's fees are not allowable in a case such as this. In re Estate of Marre, supra, does not support appellant's contention, for the holding there was that, although it was contended that fees were a necessary expense of the beneficiary of a trust, the amounts payable were to be determined in the sole judgment of the trustees, and the court in a companion case In re Estate of Marre, 18 Cal.2d 184, 190, 114 P.2d 586, held that the amounts to be paid for the beneficiary's support should be determined in the discretion of the trustees. In the present cause the court has found that an allowance of attorney's fees is necessary for the support and maintenance of the child, just as it also found that an allowance for medical expenses was necessary.

In the case of Arais v. Kalensnikoff, 1937, 10 Cal.2d 428, 74 P.2d 1043, 1047, 115 A.L.R. 163, suit was brought to compel a father to support his illegitimate child under section 196a of the Civil Code, which at that time read as follows: ‘The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order to enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.’ The court in the cited case held: ‘Also as section 196a of the Civil Code requires a father to support his child, the trial court had power to order him to pay attorney's fees in the action brought to enforce that obligation.’ In other words, the attorney's fees in an action brought under section 196a of the Civil Code were allowed, not upon an express authorization of the statute, but as a necessary element of the support and maintenance of the child. See also, Kyne v. Kyne, 38 Cal.App.2d 122, 131, 100 P.2d 806; Paxton v. Paxton, 150 Cal. 667, 89 P. 1083. It is true the present action is not brought against a living parent to enforce the obligation of support, but the same reasoning should apply where the claim is against the estate of a parent under section 680 of the Prabate Code. That section provides that the widow and minor children are entitled ‘to such reasonable allowance out of the estate as shall be necessary for their maintenance according to their circumstances, during the progress of the settlement of the estate, * * *.’

For the reasons herein stated, the order appealed from is affirmed.

WHITE, Justice.

YORK, P.J., and DORAN, J., concur.

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