Santiago v. Underwood

DRAPER, J.

This is a proceeding to determine heirship. The trial court found that the sole surviving heirs are an adopted daughter and the surviving husband, and that the estate is wholly separate property of decedent. It ordered distribution of the intestate portion thereof in equal shares to daughter and husband (Prob. Code, § 221). The daughter appeals, contending that the marriage of respondent and decedent was invalid, and that Underwood thus has no right to share in distribution.

Appellant’s petition alleged that respondent was the surviving husband of decedent, but relied upon a claimed ante-nuptial agreement as a bar to his sharing in the estate. The claim based upon this agreement has been abandoned on appeal. Respondent had been divorced in Nevada before marrying decedent. In cross-examination of respondent, it developed that Ellen, his former wife, had secured a divorce decree from him in Monterey County after respondent’s marriage to the decedent, Naomi. Appellant then sought leave to amend her statement so as to deny that respondent was the surviving husband. The court took the motion to amend under submis

[671]

sion and permitted introduction of evidence upon the validity of the Nevada divorce, subject to motion to strike.

The evidence so taken showed that respondent was divorced from Ellen May 22,1950, and on the same day married Naomi in Reno. He and Naomi lived together as man and wife from that date until her death December 31, 1956. Respondent had worked in Reno before February, 1950. In February, 1950 (no date specified) he went to Reno and remained there until about a week after his divorce and remarriage, when he and Naomi left Reno for Salinas. Shortly thereafter he returned to Reno, where he worked for about 10 months before going back to Salinas, where he and Naomi lived until her death. After May 22, 1950, Ellen filed an action for divorce against respondent in Monterey County. Respondent answered, alleging the Nevada divorce, but later abandoned defense of the action. Interlocutory decree was granted to Ellen. Respondent was asked “At the time that you married Naomi West you were not free to marry?” and answered “Not according to California laws, as I understand it.”

After hearing this testimony, the court denied appellant’s motion to amend her petition and statement of interest, and struck the testimony relating to the Nevada divorce, on the ground that the information as to invalidity of that divorce “was as readily available to you before we entered into trial or appeared in court” as at time of trial.