Estate of Shank

154 Cal.App.2d 808 (1957) Estate of CLAIRE M. SHANK, Deceased. BERYL E. WORLEY, Petitioner and Appellant,

v.

ROBERT E. SEASE, as Executor, etc., Defendant and Appellant; VIRGINIA MIHAN et al., Respondents.

Civ. No. 5559. California Court of Appeals. Fourth Dist.

Oct. 30, 1957. Best, Best & Krieger, Eugene Best, John D. Babbage and John H. Barnard for Petitioner and Appellant.

Manuel Ruiz, Jr., for Defendant and Appellant.

Gibson, Dunn & Crutcher, John T. Pigott, Jr., and John L. Endicott for Respondents.

STONE, J. pro tem. [fn. *]

Claire Marie Shank died intestate and without issue on March 22, 1953, leaving an estate consisting entirely of separate property. An administrator was appointed and during the course of probate a petition for determination of heirship was filed by Beryl E. Worley, in which he alleged that he and decedent had been married on June 12, 1944, in San Diego, California, and that he was her husband at the time of her death. Worley also alleged that Virginia Mihan, an adult sister, Melvin T. O'Rielly and Frank L. O'Rielly, adult brothers, were the only heirs of [810] deceased and that as surviving husband he was entitled to distribution of one-half of the estate.

Virginia Mihan, Melvin T. O'Rielly and Frank L. O'Rielly answered the petition of Worley and made a statement of claim. They admitted the marriage but alleged that it was dissolved by legal process, and subsequently, in January, 1948, decedent married John Jeffers Shank. They made claim as heirs to distribution of one-half of the estate. Worley's petition was also answered by John Jeffers Shank, who alleged that he married decedent January 16, 1948, and he, not Worley, was her husband at the time of her death. Shank made claim to one-half of the estate on distribution.

The evidence disclosed that Worley and decedent were married June 12, 1944, and on May 10, 1945, decedent instituted proceedings in the Court of First Instance of the State of Chihuahua, Republic of Mexico, to obtain a divorce from Beryl E. Worley. On or about June 1, 1945, the sheriff of Clark County, Nevada, personally served Worley with certain papers issued by the court of Chihuahua in connection with the divorce action, and subsequently, on July 8, 1945, a decree of divorce was entered by said Court of First Instance of Chihuahua purporting to divorce decedent from Beryl E. Worley. Neither decedent nor Worley was at any time domiciled in Chihuahua, Mexico. On January 16, 1948, decedent married John J. Shank, in Toledo, Ohio, and continued to live with him as man and wife until her death March 22, 1950.