Cotgias v. Burkett

SPENCE, Acting P. J.

John Gill died testate in 1933. All of his property was left by his will to Mabel Greer, who was not related to him, but who had acted as his housekeeper for some months prior to his death. Viola Cotgias, the appellant herein, filed a petition for revocation of probate of said will. She alleged therein that she was the daughter of John Gill’s predeceased spouse who had died in 1931. Her right to file her petition was based upon the claim that Mary Kellen, her mother, and John Gill were husband and wife at the time of her mother’s death, and that John Gill had left property which had been the community property of himself and appellant’s mother. (Probate Code, sec. 228.) Respondents, who were sisters of John Gill, had also contested the will and were permitted to intervene and file a complaint in intervention on appellant’s contest. The issues were segregated by consent and the issue of whether appellant had such interest as would entitle her to contest the will was tried by the court sitting without a jury. The trial court found that John Gill and Mary Kellen, the mother of appellant, were never husband and wife and thereupon entered judgment dismissing appellant’s petition for revocation of probate. It is from this judgment that appellant appeals.

It is the contention of appellant that the evidence

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was insufficient to sustain the finding that Mary Kellen was not the wife of John Gill, but we find no merit in this contention.

The burden of proof was upon appellant to prove the marriage of John Gill and Mary Kellen, and she relied solely upon the presumption “that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage”. (Code Civ. Proc., sec. 1963, subd. 30.) No direct evidence was offered to prove such marriage. Before proceeding with a discussion of the evidence found in the record, it appears appropriate to examine briefly the history of said subdivision 30 of said section 1963.

It was enacted in 1872 together with section 55 of the Civil Code, which last-mentioned section then permitted a valid marriage to be entered into without solemnization. Said section 55 of the Civil Code was amended in 1895 to require solemnization as prescribed in the code (Stats. 1895, p. 121), but said subdivision 30 of section 1963 of the Code of Civil Procedure has never been amended. The latter was in effect a codification of the common-law rule which permitted proof of marriage by habit and repute