Garrado v. Collins

ASHBURN, J. pro tem.

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Defendants Pauline Collins and Wilburn Adams appeal from a declaratory judgment in favor of plaintiff Roy Lee Garrado, who in turn moves to dismiss the appeal upon the ground that appellants are not aggrieved by the judgment. We do not reach a decision upon the merits

[324]

of appellants’ contentions because it appears that the motion to dismiss is well taken.

Pauline Collins is administratrix of the estate of Estella Mae Garrado, deceased. She is sued individually and as such administratrix. She and her codefendant are children of decedent and one Paul Adams to whom decedent was married prior to January 1, 1931. The action involves certain real property on Antwerp Avenue in the city of Los Angeles which the court found to be decedent's separate property as to a two-thirds interest therein. This interest was adjudged to belong to plaintiff and the two individual defendants in equal shares. Defendants ’ appeal challenges the holding that plaintiff is entitled to an interest in said separate property of decedent, this because he was her putative husband only.

Plaintiff’s complaint alleges that he and decedent, Estella Mae Garrado (also known as Estella Mae Adams), were married on January 1, 1931; that she died intestate on January 11, 1953, in Los Angeles; that during the intervening 22 years, they lived together as man and wife openly, notoriously and in complete good faith. Pacts are also alleged which if true would establish that the Antwerp Avenue realty was community property in its entirety. Plaintiff also alleged that the controversy is this: “Plaintiff, on the basis of the facts set forth above, contends that all of said estate was community property, hence goes to him under Probate Code, section 201. Defendants contend that plaintiff’s marriage to Estella is void because she was then married to some other person or persons unknown to plaintiff, and that said property is not community property; hence plaintiff should inherit either nothing or one-third of Estella’s estate.” He prayed that the court declare his rights in the property. Nowhere else in the complaint was any reference made, directly or indirectly, to a former marriage of Estella, or to his own marriage with her being void, or his own status being that of a putative husband. Defendants’ answer, after making numerous denials, admitted by silence the quoted averment as to the existing controversy and added a paragraph XI reading as follows: “That these answering defendants affirmatively allege that a long time prior to the 1st day of January, 1931, Estella Mae Adams was married to Paul Adams and that said marriage was never terminated by a decree of any court, and that the said Paul Adams is still living and resides at Omaha, Nebraska.” Defendants prayed that it be adjudged that plaintiff is not the surviving spouse of decedent, that he has