Gill v. Brickman

MUSSELL, J. Plaintiff Dalka Gill and George Gill (hereinafter referred to as Gill) were married in 1923 in Poland. There was one child the issue of this marriage, born January 15, 1924, and named Joseph. When the child was a few months old, Gill came to the United States. After remaining here about two and one-half years, he returned to Poland. In 1929 he brought his wife and child to New York and lived there with them until 1930. During that year he deserted plaintiff and the child in Brooklyn, New York. Plaintiff Dalka Gill did not see Gill or hear from him thereafter and she procured a divorce in 1950.

Gill and Sarah Brickman were married in San Diego March 20, 1932. They operated a small secondhand store and tailor shop in San Diego until 1937, when their marriage was dissolved by divorce. Gill went “east” for about a year. He returned to San Diego and remarried Sarah Brickman on January 17, 1938. In the marriage certificate of March 20, 1932, Gill stated that he was single and that it was his first marriage, and in the certificate of January 17, 1938, he stated that he was divorced and stated the number of marriages as two.

[487]Gill died intestate in San Diego July 24, 1948, and his estate was probated by Sarah Gill as his widow. She also obtained an order terminating joint tenancies in connection with the probate proceedings. On September 13, 1949, Sarah Gill died, leaving all her property by will to her brother, Louis. Louis died in April, 1951, after conveying all his property to his wife, Rose Briekman.

On December 29, 1951, plaintiffs filed this action to. obtain a judgment declaring them to be the legal widow and son, respectively, of George Gill, deceased, and declaring them to be entitled to all of the assets of the estate of decedent. Plaintiffs also prayed for an accounting and a declaration that defendants are in possession of certain assets as constructive trustees for the benefit of plaintiffs.

Trial was had by the court without a jury and the court found, inter alia, that it is true that Dalka Gill and George Gill were married in 1923; that it is not true that they continued to be husband and wife from said date until the death of said George Gill; that it is true that the said marriage between Dalka Gill and George Gill is presumed to have been dissolved by judicial decree; that it is true that there is not sufficient evidence before this court to overcome said presumption; that it is true that said George Gill died intestate in the City of San Diego, County of San Diego, State of California, on or about July 24, 1948; that letters of administration on the estate of George Gill were duly issued to Sarah Gill and that the order of distribution in said estate has never been appealed from, reversed or set aside; that it is not true that Sarah Gill knew of the existence or whereabouts of plaintiffs herein or of their relationship to the deceased and not true that said Sarah Gill knew that the said marriage between George Gill and Dalka Gill had never been dissolved by decree of divorce or otherwise; that Sarah Gill was the legal widow of George Gill, deceased, and entitled to all of the assets of his estate; that on October 7, 1949, the last will of Sarah Gill, deceased, was admitted to probate; that on or about April 28, 1950, by order of distribution all of the assets of the estate of Sarah Gill were distributed to Louis Briekman and said order was never appealed from, modified or set aside; that it is not true that Dalka Gill is the lawful widow of George Gill, deceased; that Sarah Gill married George Gill in good faith, without any knowledge on her part of the existence of Dalka Gill and without knowledge of the existence of any relationship between Dalka Gill and George Gill and continued