In re Anderson's Estate
| Decision Date | 26 May 1948 |
| Docket Number | 8768. |
| Citation | 194 P.2d 621,121 Mont. 515 |
| Parties | In re ANDERSON'S ESTATE. |
| Court | Montana Supreme Court |
Rehearing Denied July 1, 1948.
Appeal from District Court, Ninth District, Glacier County; C. B Elwell, Presiding Judge.
Proceeding in the matter of the estate of Peter B. Anderson, deceased on petition of Peter B. Anderson and Mildred Kittilson for the probate of decedent's will executed on July 18, 1935 which was opposed by Mrs. Emelia Anderson, widow of deceased on ground that will was invalidated by subsequent marriage of deceased to objectant. From a judgment denying probate of the will, the proponents appeal.
Judgment affirmed.
John J. Greene, of Cut Bank, Louis P. Donovan, of Shelby, and Ralph J. Anderson and Albert C. Angstman, both of Helena, for appellant.
John W. Bonner, of Helena, for Emelia Anderson, respondent.
Howard C. Burton and Edward C. Alexander, both of Great Falls, for H. C. Hall, respondent.
Lloyd A. Murrills, of Cut Bank, in pro. per.
In November 1939 Emelia Fadden came to Montana to live with her daughter. She had been married to one Walter Fadden since June 18, 1929. Emelia and Walter Fadden lived together for two years in California and then separated and they had lived apart for eight years when Emelia Fadden came to Montana. In May 1940 Emelia met Peter B. Anderson, a widower, living at Cut Bank, Montana. He proposed marriage but she informed him that she was already married. In June 1940 Emelia acquiesced to Anderson's proposal and at his suggestion prepared to get a divorce. She had resided in Montana for less than the year required by the Montana statutes, Rev.Codes 1935, § 5766, and therefore could not institute an action for divorce in this state. It was arranged that Emelia would go to Las Vegas, Nevada, take up her residence there and procure a divorce and then marry Anderson. Anderson drove her to Butte so that she could take the train to Las Vegas, paid her fare and advanced money to pay her expenses while she stayed in Las Vegas. Emelia arrived in Las Vegas, Nevada, on July 12 1940, where she took a furnished room. She remained there continuously until September 2, 1940. She filed an action for divorce and then returned to Butte where Anderson met her and together they took a trip to Minnesota, visiting Mr. Anderson's relatives, and later returned to Browning, Montana. Then Anderson again drove her to Butte where she took the train to Las Vegas in order to procure her final decree of divorce. On November 13, 1940, she was granted a final decree of divorce from Walter Fadden.
Walter Fadden did not appear and service was had upon him by publication. The Nevada court found as a fact 'that the plaintiff is now and was for more than six weeks immediately preceding the filing of her verified complaint in this action, an actual bona fide resident of Clark County, Nevada, and that during all of said time, Las Vegas, Clark County, Nevada, was the home and only home and sole place of residence of the plaintiff.'
After a brief trip to Los Angeles, Emelia returned to Montana and she and Peter B. Anderson were married at Missoula, Montana, On February 3, 1941. They lived together as man and wife until September 2, 1943. On that date Peter B. Anderson instituted an action for divorce from Emelia Anderson and after hearing Peter B. Anderson was granted a divorce from Emelia Anderson by decree entered October 17, 1944. Thereafter an appeal from the judgment granting the decree of divorce was perfected by Emelia Anderson. On March 17, 1945, subsequent to the perfection of the appeal but before the hearing thereon, Peter B. Anderson died and his administrator was substituted as plaintiff.
The appeal was presented to this court as Cause No. 8578, Judson v. Anderson, 165 P.2d 198, 207, and this court ordered the judgment vacated and the plaintiff Peter B. Anderson's complaint for divorce dismissed. This court retained jurisdiction after the death of Peter B. Anderson over the objections of Anderson's administrator that the only question was the marital status of the parties which abated on the death of one of them. This court said:
Thereafter on August 6, 1946, Peter B. Anderson, son of the deceased Peter B. Anderson, and Mildred Kittilson, daughter of the deceased, filed a petition for probate of the will of said deceased Peter B. Anderson. The will offered for probate was executed and attested on July 18, 1935.
Emelia Anderson objected to the probate of the will for the reason that she married Peter B. Anderson, deceased, after the execution of the will offered for probate and that by virtue of section 7001, Revised Codes of Montana 1935, this marriage operated to revoke the will. The proponents of the will answered the objections by alleging that Emelia Anderson married Walter Fadden in California on June 18, 1929, that the marriage had never been legally dissolved and that the marriage of Emelia Anderson and Peter B. Anderson was void and therefore did not revoke the will.
In her reply Emelia Anderson alleged that she was lawfully divorced from Walter Fadden at Las Vegas, Nevada, on November 13, 1940, that she was lawfully married to Peter B. Anderson and consequently the will executed before their marriage was revoked.
After hearing evidence two questions were submitted to the jury for findings. The questions and the jury's findings thereon are:
The court made additional findings of fact on noncontroversial matters and made the following conclusions of law:
The court entered judgment denying probate of the will. The proponents have appealed from this judgment.
The trial court based its decision on the jury's finding No. 2 that Peter B. Anderson, deceased, had taken, persuaded and induced Emelia Anderson to go to Nevada for the purpose of securing a divorce from Walter E. Fadden and had paid a substantial part of the expenses of travel and the costs of the divorce action incurred by Emelia Anderson, had supported her while she was living in Las Vegas and subsequently, with full knowledge of the circumstances, married her and they lived together as husband and wife for two and a half years.
The United States Supreme Court in the second case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, reaffirmed the proposition that a bona fide domicile in the state granting the divorce was necessary to confer jurisdiction. It was there held that the full faith and credit clause of the Federal Constitution, article 4, § 1, did not prevent one state from refusing to recognize a divorce decree of another state where the plaintiff had not in fact acquired domicile. A recital in the decree that such domicile had been obtained was unavailing if the issue had not been actually litigated in an adversary proceeding.
The doctrine of estoppel has been invoked to prevent a collateral attack on a foreign judgment by the party procuring the divorce or where the defendant in the divorce action remarried in reliance thereon.
The Restatement of the Conflict of Laws, section 112, says:
'The validity of a divorce decree cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation, either by a spouse who has obtained such decree of divorce from a court which had no jurisdiction, or by a spouse who takes advantage of such decree by remarrying.'
The rule has been extended to apply to the spouse of the divorcee who was active in securing the divorce (17 Am. Jur., Divorce and Separation, sec. 760, Cum. Supp. 1947; Freeman Judgments, sec. 320, note 3 A.L.R. 535, 540), or one who treated it as valid and changed his or her marital status in reliance thereon. The doctrine that a person instrumental in procuring a divorce was barred from attacking its validity has been variously founded upon quasi-estoppel (In re Davis' Estate, 38 Cal.App.2d 579, 101 P.2d 761, 102 P.2d 545; Harlan v. Harlan, 70 Cal.App.2d 657,...
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