In Re Estate of Martin

MELVIN, J.

Cora H. Martin, the widow of Charles J. Martin, and Hipolite J. Martin, his son, each filed a petition for letters of administration upon the estate of said Charles J. Martin, deceased. The court, pursuant to stipulation, heard both petitions together and made an order granting the prayer of Hipolite J. Martin and another denying the application of the widow. Prom these orders she appeals.

Under ordinary conditions and unless she waives that right in some way, the widow is entitled to letters of administration. In this case it appeared that on August 29, 1911, Charles J. Martin and Cora II. Martin entered into an agreement settling certain property rights and .containing a waiver by her of all claim of interest in his estate and all rights therein after his death. Later Charles J. Martin sued her for divorce and on September 23, 1911, an interlocutory decree in his favor was entered. Martin died in April, 1912. The lower court reached the conclusion that the agreement was sufficient, if in force, to cut off the rights of Cora H. Martin to administer, and that in fact it was in full effect at the time of the death of Charles J. Martin.

It is only necessary to examine the contract and to consider the conduct of the spouses after its execution in determining whether "or not it was still in force when Martin died. The existence of the interlocutory decree would not take away the right of the widow to administer.

(Estate of Dargie,

162 Cal. 52, [121 Pac. 320].) And appellant contends that her uncontradicted testimony establishes a reconciliation between herself and her husband together with conduct which amounted to such resumption of marital relations as, under the authorities, amounts to an annulment of the contract whereby she agreed to forbear all claim of interest in her husband’s estate. It is not necessary to repeat the language of the contract. That instrument contains a complete waiver by each party of all rights of any kind in the'other’s estate. Let us then examine Cora PI. Martin’s testimony regarding her

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relations with her husband after the entry of the interlocutory decree. She swore that very soon after the trial she met her husband in a candy store in San Jose. She was weeping and he, calling her names of endearment, begged her not to cry. He asked permission to call upon her and did call many times. According to her testimony, Mr. Martin declared his intention of returning to live with her when he should get back his property which had passed into the control of his children. She told of sexual relations between her and her husband occurring at frequent intervals between the time of the entry of the interlocutory decree and his final illness. A number of letters written by Mr. Martin to his wife during the early part of the year 1912 were introduced in evidence. These were couched in affectionate terms. She was addressed as “Dear Corita” and he signed “Tour loving husband” or “Tours lovingly.” In some of them there are expressions which might indicate a wish on his part for a reconciliation. They also contain admonitions to her to control her temper and in one is the statement that he and she had not understood each other. Not one of them contains a request for the resumption of marital relations. Indeed, in one he writes, If you think your comfort and happiness will serve you better by remaining south, why do so.” Mr. Martin, according to appellant’s statement, furnished her with money “on an average of from fifty to seventy-five dollars a month” up to the time of his illness, which began about March 1, 1912, and also paid her bills. On the day before he was taken down with his last illness there was a conversation between them, a portion of which was related by Mrs. Martin, as follows: “He said to me, Cora, how do you feel about my coming back?’ I answered, ‘I want you to come back and it is a duty you owe me’; he said', ‘Yes, I know, dear, and I want to come back. I am going to try again, and if I can arrange matters, I will be back next week.’ ” The witness also said: “During the various conversations between Mr. Martin and myself, in which we discussed returning one to the other, there were conditions imposed by me, as they should be to a wife. The condition I imposed was a will. Once he suggested deeding me a portion of the Second Street property, I expected one-third of his property; and whenever he saw fit to give me that one-third, I was willing to receive him back as a loving wife