Gosnell v. Gosnell

[39]

WOOD (W. J.), J.

The appellants, children of Ira Gosnell, who died on July 28, 1942, have appealed from an order granting a family allowance in the sum of $250 per month to Evalou Gosnell, respondent, who married Ira Gosnell on July 5, 1941.

Respondent married Wade E. Willey at Las Vegas, Nevada, on November 6, 1942. At the hearing in the probate court respondent offered and the court received in evidence a decree of the Superior Court in and for the County of San Francisco, dated March 25, 1943, in which it was adjudged “that the purported ceremony of marriage between Evalou Gosnell Willey and Wade Willey be, and the same is hereby, annulled and declared void and without any force or effect whatsoever from the beginning.” It appears from the decree of the San Francisco court that notice of the time and place of the trial and findings of fact were waived by the defendant Willey and consequently the court made no findings.

A widow loses her right to a family allowance upon her remarriage.

(Estate of Still,

117 Cal. 509 [49 P. 463].) There was a period of approximately six months following November 6, 1942, in which respondent was the wife of Willey by virtue of the marriage at Las Vegas, a marriage that was valid for all purposes until annulled by a court having jurisdiction. If Willey had died during that period she would have been entitled to a widow’s allowance from his estate.

(Estate of Harrington,

140 Cal. 244, 247 [73 P. 1000, 98 Am.St.Rep. 51].) The wife of Willey would not be entitled to a family allowance claiming to be the widow of Gosnell. The argument that by the decree of the San Francisco court, apparently entered with the consent of Willey, she again became the widow of Gosnell is not persuasive.

A marriage contracted in the State of Nevada which is valid under the laws of that state is valid in the State of California (Civ. Code, § 63). The right to a decree of nullity is governed by the law which determines the validity of the marriage.

(McDonald

v.