Branford Baptist Church v. Nichols

TRAYNOR, J. Lewis Warren Smith died on May 28, 1945, leaving a holographic will dated April 7, 1942. By his will he bequeathed “to my wife the sum of Five Dollars” and $500 to the widows’ and orphans’ fund of a lodge of Masons, and left the residue of his estate to the Branford Baptist Church of Connecticut.

Amy Edith Smith, respondent, filed a claim against the estate alleging that she is the widow of the testator. She claims that she is entitled to two-thirds of the estate on the ground that charitable bequests under section 41 of the Probate Code may not collectively exceed one-third of the estate as against the spouse of the decedent.

It is undisputed that respondent married the testator in January, 1926, and that they lived together until 1932 or 1933. It is also undisputed that in November, 1938, respondent entered into a marriage ceremony with Ralph N. Nichols, with whom she lived until May 13, 1945. After evidence was introduced relating to the marital status of respondent, the probate court found that respondent was the widow of the testator, and entered a decree of distribution, ordering that two-thirds of the residue of the estate be distributed to her. After completion of the hearing in the probate proceedings but before the entry of the decree, Ralph N. Nichols, who had previously commenced a divorce action against respondent, filed an amended complaint, in which he requested an annulment on the ground that at the time of respondent’s marriage to him she was married to the testator. Neither Nichols nor respondent testified in the annulment proceeding, which was held five days after the entry of the decree of distribution in the probate proceeding. Counsel for Nichols introduced the record of the decree, whereupon the annulment was granted. [281]The Branford Baptist Church appeals from the decree of distribution.

It is well established that when a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage, and the burden is upon the party attacking the validity of the second marriage to prove that the first marriage had not been dissolved by the death of a spouse or by divorce or had not been annulled at the time of the second marriage. (Hunter v. Hunter, 111 Cal. 261 [43 P. 756, 52 Am.St.Rep. 180, 31 L.R.A. 411]; Wilcox v. Wilcox, 171 Cal. 770, 774 [155 P. 95]; Estate of Pusey, 173 Cal. 141, 143 [159 P. 433]; Estate of Hughson, 173 Cal. 448, 452 [160 P. 548]; Hamburgh v. Hys, 22 Cal. App.2d 508, 509 [71 P.2d 301]; Immel v. Dowd, 6 Cal.App.2d 145, 147 [44 P.2d 373].) That burden is sustained if the evidence, in the light of all reasonable inferences therefrom, shows that the first marriage was not so dissolved or annulled. (Williams v. Williams, 63 Wis. 58, 66 [23 N.W. 110, 53 Am. St.Rep. 253]; Turner v. Williams, 202 Mass. 500, 505 [89 N.E. 110, 24 L.R.A. N.S. 1199]; Schmisseur v. Beatrie, 147 Ill. 210, 217 [35 N.E. 525]; Cole v. Cole, 153 Ill. 585, 587 [38 N.E. 703]; Barnes v. Barnes, 90 Iowa 282, 285 [57 N.W. 851]; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 509 [46 So. 51]; Brokeshoulder v. Brokeshoulder, 84 Okla. 249 [204 P. 284, 288, 34 A.L.R. 441].) “There can be no absolute presumption against the continuance of the life of one party to a marriage, in order to establish the innocence of the other party to a subsequent marriage; much less can there be a rigid presumption of a dissolution of the first marriage by divorce, in order to make out such innocence. . . . In any particular case, the question must be determined, like any other question of fact, upon a consideration of the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom.” (1 Jones, Commentaries on Evidence, 103-104.)