Estate of Hensgen

WHITE, J.

This is an appeal from an order of the Superior Court of Los Angeles County, appointing Esther Hens-gen, nominee of Thelma L. Hensgen Neal (hereinafter called Thelma Hensgen) administratrix of the estate of Nicholas Carl Hensgen, deceased. Rose Hensgen and Thelma Hensgen each claim the right to administer as widow of decedent; and

[79]

the decision herein turns upon the effect of a decree of divorce granted Thelma Hensgen in Mexico, followed by the remarriage of decedent to petitioner and appellant, Rose Hens-gen, and the subsequent marriage of Thelma Hensgen.

Nicholas Carl Hensgen and Thelma Hensgen were married in 1928, and separated at Los Angeles, California, in 1940. As the issue of said marriage two children were born. On December 12, 1940, the husband and wife went to Tijuana, Baja California, Mexico, where they conferred with attorney and arranged for the wife to secure a “mail-order” divorce. They returned to Los Angeles the same day. On December 17, 1940, in the Civil Court of First Instance, Bravos District, Chihuahua, Mexico, the wife was granted a final decree of divorce and later that month received a copy of the decree. On December 24, 1940, at Reno, Nevada, the decedent married Rose Hensgen, appellant herein. On April 11, 1941, Thelma Hensgen married a man named Smith in Clark County, Nevada. Nicholas Hensgen died December 24, 1945. About February 1, 1946, Thelma divorced Mr. Smith in Nevada and thereafter married a Mr. Neal.

It is urged by appellant that Thelma Hensgen, having joined as plaintiff in securing the Mexican decree and having taken advantage thereof by remarrying, is estopped to assert the invalidity of the decree for the purpose of claiming an interest in the property of the decedent. It follows, argues appellant, that in the absence of proof of the invalidity of the Mexican divorce, there remains only the presumption of the validity of appellant’s marriage to the decedent, and that therefore she is entitled to letters of administration.

Respondents take the view that since there was no valid divorce, there could be no valid remarriage, and hence no rights could accrue to Rose as widow; and further, that appellant entered into her purported marriage with decedent after learning of the “mail-order” divorce but before Thelma had attempted to remarry, and that as between them, therefore, appellant did not rely upon Thelma’s attempted remarriage, and hence, as between them, the elements of estoppel did not arise. In other words, respondents contend that a subsequent remarriage of the first wife cannot give validity to a marriage which is void because the previous divorce of one of the parties thereto was void.