Hensley v. Tersip

SHINN, Acting P. J.

This is an appeal by Evelyn Jeanne Tersip from an order revoking letters of administration theretofore granted to her as administratrix of the estate of William J. Tersip, deceased, removing her as administratrix and ordering her to produce and file any and all wills of said decedent, if any there be.

The order was made after hearing had upon a petition filed by one Paul Hensley, a nominee of a niece of decedent. The basis for the petition and the order was that appellant had been appointed pursuant to her application for letters in which she alleged herself to be the surviving wife of decedent, whereas, in fact, she was not the wife of the decedent or related to him, but was the wife of one Robert G. Roberts. The proof of the petition tended to establish a common law marriage between appellant and said Roberts in the State of Minnesota, contracted some time during the period from 1933 to 1935. Appellant denied the common law marriage and testified that she was married to William J. Tersip in Tiajuana, October 23, 1942. The trial court found that appellant is the common law wife of said Roberts, that she was never legally married to Tership, and that when she filed her petition for letters of administration she knew that she was not the surviving spouse of said decedent.

The finding that appellant was not legally married to Tership, broadly interpreted as it should be in support of the order, should be construed as a finding that there was no marriage ceremony as testified to by appellant.. Her testimony was that Tership took her to Tiajuana in October, 1942, where he introduced a man to her as a priest; there, was a

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ceremony conducted in broken English which she did not understand; that she did not think it was in a church; that the man signed what he said was a certificate of marriage, that she signed it and that she did not know what had become of it; that both she and Tership were Catholics and could not be married in a Catholic church, and that she thought the ceremony was performed in a residence but did not know its location. One Mikulcic, an acquaintance of decedent, testified that in the fall of 1941, he visited decedent in the La Brea Sanitarium; that Tership told him at that time that he and appellant intended to be married in Tiajuana ; that about three days after that appellant and Tership came to his house, took him out to dinner, appellant had a ring Avhich she showed him, and Tership said they had been married in Tiajuana. No documentary or other evidence was produced in support of appellant’s claim that she had married Tership, nor was there evidence that any effort had been made to locate a record of the marriage in Tiajuana. Appellant’s account of the marriage was extremely casual and, in view of her lack of interest to produce a record of it, was unconvincing. A statement of identity signed by Tership for the benefit of a title company was received in evidence. It stated that he and appellant were married in Mexico City, October 15, 1942. Appellant had come to California from Minnesota in 1937, and in April, 1939, had established the Glen Braw Sanitarium in Los Angeles. Tership was an employee in her sanitarium but had no interest in it. About January, 1941, she and Tership opened a joint bank account in the names of William J. or Jeanne E. Tership. In 1945, real estate was conveyed to them in joint tenancy but it had been sold prior to the death of Mr. Tership, and reference was made in the testimony to other property which had been conveyed to them in like manner. While there was no express finding that the alleged ceremony of marriage was not performed in Tiajuana, we are obliged to imply one from the finding that appellant was not legally married to Tership. We must therefore assume that the court did not believe the testimony of appellant and rejected as unsatisfactory the evidence respecting that marriage ceremony. On this ground alone we would be obliged to affirm the order.