In Re Estate of Seiler

SLOSS, J.

Catarina Seiler died intestate on the third day of October, 1911. She was a resident of the county of Fresno, and left estate therein. Petitions for letters of administration were filed by Phillipp Seiler, claiming to be the surviving husband of the decedent, and by the public administrator. The court made its order denying the application of Seiler and granting that of the public administrator. Seiler appeals from the order.

The appellant was concededly entitled to administer if he was the surviving husband of the decedent. That he had

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been her husband was not disputed. The public administrator was permitted, over Seiler’s objection, to prove that in April, 1911, some six months before Mrs. Seiler’s death, and about seven months before the hearing on the applications for letters, an interlocutory decree in favor of plaintiff had been given and entered in a divorce action instituted by Catarina Seiler against Phillipp Seiler. The trial court apparently took the view that the entry of this decree terminated the relation of husband and wife between the parties to the action, and deprived the former husband of the right of inheritance from his wife. This was error. Any doubt that may have existed on this point at the time of the hearing has been resolved by the decision of this court in

Estate of Dargie,

162 Cal. 51, [121 Pac. 320], filed in January of the present year. ■ It was there held, in a case presenting a similar question to the one now before us, that the entry of the interlocutory decree does not dissolve the marriage. “By the terms of the statute,” says the opinion, “it is the final judgment alone that grants the divorce, dissolves the marriage, restores the parties to the

status

of single persons, and permits each to marry again.” Until the court has by final judgment, declared the marriage dissolved, “the parties remain in the legal relation of husband and wife.” At the time of the hearing for letters of administration in this ease, no final decree of divorce had been rendered. In fact, none could have been rendered, the interlocutory decree being then less than one year old. It follows that, under the rule declared in the Dargie ease, the appellant was the surviving husband of the decedent, and as such entitled to letters.