Estate of LeMont

Opinion

KINGSLEY, Acting P. J.

This is a dispute between the brother of decedent (James) and a woman (Maurine) claiming as his surviving spouse. The trial court made an order finding that Maurine was the surviving widow of decedent, entitled to a family allowance and granting her letters of administration. The brother has appealed;

1

we reverse the order.

Decedent was Maurine’s second husband; no issue is made here as to the

[439]

validity of that marriage. They separated and in 1958 he wrote to her saying that he was moving to California; she never heard from him thereafter during his lifetime. Inquiries made in California in 1963 were unavailing and, believing him to be dead, she contracted a third (Mexican) marriage in 1964 to Merle Jones. After decedent’s death in 1968, Maurine learned of his continued existence and, in 1969, secured an annulment of her third marriage.

The record before us tells us no more about decedent than that Maurine had not heard from him after 1958 and that he died, in California, in 1968. The record of the annulment action in 1969 is also not before us and was not before the trial court. Under these circumstances, it is argued that, under the doctrines lately discussed by this court in

Leslie

v.

Leslie

(1966) 244 Cal.App.2d 516 [53 Cal.Rptr. 402], there was, and is, a presumption that the marriage between Maurine and decedent had been dissolved prior to 1963 and that any finding to the contrary in the annulment action is not binding on appellant, under section 86 of the Civil Code.

2

But that argument has no bearing on the case before us. The case at bench is controlled by subdivision 2 of section 61 of the Civil Code—the so-called “Enoch Arden” statute—as that section stood at the times herein involved.

3

That statute provided: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: