Abila v. Spendrup

TRAYNOR, J.

Jose Maria Abila died in December, 1943, leaving a will that was duly admitted to probate. Emelina Y. Abila, who was not mentioned in the will, filed a petition to

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determine heirship under section 1080 of the Probate Code, alleging that she is the widow of decedent. She also alleged that the entire estate was less than $2,500 and prayed that it be set aside to her as surviving spouse under section 640 of the Probate Code.

Petitioner married Paul Ortega in 1897, but this marriage was subsequently annulled. She married decedent in March, 1910. They separated in September, 1911, and decedent obtained an interlocutory decree of divorce in March, 1913, on the ground of desertion. The final decree, however, has never been entered. Petitioner entered into a marriage ceremony with Gustave Moser in 1915, and lived with him for eleven years. She obtained an interlocutory decree of divorce from Moser in May, 1929, and the final decree was entered a year thereafter. The trial court found that petitioner was not the widow of decedent at the time of his death, but was the divorced wife of Moser, and held that she was not entitled to have the entire estate set aside to her. Petitioner appeals.

Petitioner contends that the interlocutory decree of divorce did not dissolve her marriage with decedent, since no final decree was entered, and that the subsequent marriage with Moser was therefore void. Even if it is assumed, however, that petitioner is the widow of decedent, it does not follow that she is entitled to have the entire estate set aside to her. It is settled that an estate may not be set aside to a widow who, because of her desertion, was not entitled to the support of her husband at the time of his death.

(Estate of Bose,

158 Cal. 428, 429 [111 P. 258];

Estate of Miller,

158 Cal. 420, 423 [111 P. 255];

Estate of Boeson,

201 Cal. 36, 41 [255 P. 800]; see

Estate of Brooks,