In re Brandt's Estate
| Decision Date | 01 March 1948 |
| Docket Number | 4970 |
| Citation | 190 P.2d 497,67 Ariz. 42 |
| Parties | In re BRANDT'S ESTATE. v. BRANDT BRANDT |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Pima County; J. Mercer Johnson, Judge.
Proceeding in the matter of the estate of Fritz T. Brandt, deceased, by Leta F. Brandt opposed by Clarine G. Brandt to establish a widow's allowance. From the judgment, opponent appeals.
Judgment affirmed.
Krucker & Fowler, of Tucson, for appellant.
Fred W Fickett, William S. Dunipace and Robert S. Tullar, all of Tucson, for appellee.
OPINION
This is an appeal from an order and judgment of the lower court directing the executrix of the estate of Fritz T. Brandt to pay Leta F. Brandt, the decedent's purported widow, a family allowance.
The essential facts are these: On March 17, 1946, Fritz T. Brandt, a marine engineer, died aboard ship at Poti, Russia; he was survived by two women, each of whom claimed to be his lawful widow, Leta F. Brandt, hereinafter called the appellee, and Maude A. Brandt. By a will dated approximately a year prior to his death Brandt left all of his property, consisting largely of $ 4,400 in cash, to his estate, and named his daughter, Clarine G. Brandt, the executrix. The will was admitted to probate and the named executrix duly qualified.
The decedent and Maude A. Brandt were married in the year 1911. In 1943 he brought an action for divorce in the District Court of Harris County, Texas, and she was constructively served in Arizona. She entered no appearance, and on April 27, 1943, a decree was entered by the Texas court purporting to divorce the parties. The decedent then returned to Tucson where on May 4, 1943, he entered into a marriage ceremony with the appellee. On August 8, 1946, the appellee, as surviving widow, petitioned the estate for a family allowance, and asked that the property exempt from execution be set aside to her. The executrix (appellant) filed an amended response to this petition in which she attacked the validity of the marriage between the decedent and the appellee; the executrix contended that the decedent did not acquire a domicile in Texas; that the Texas court did not have jurisdiction to render him a divorce decree, and that therefore the Texas decree was wholly void and invalid and the subsequent marriage of the decedent and the appellee in Arizona was unlawful. The executrix asked that the court invalidate the Texas divorce, declare Maude A. Brandt to be the lawful wife of the decedent, and deny the appellee's petition for a family allowance.
At the request of the executrix the issues thus framed by the petition and answer were set down for trial before a jury. At the close of the trial the court directed a verdict for the appellee on the ground that the executrix was estopped to question the validity of either the Texas divorce or the subsequent remarriage. Whereupon this appeal was taken by the executrix.
Her six assignments of error all bear on the proposition that the plea of estoppel was not available to the appellee under the record here before us. She contends: (a) that the defense of estoppel to be available must be affirmatively pleaded by way of answer or other responsive pleading, before trial, where the necessity of such defense appears on the face of the pleadings; (b) that it was error for the court to permit the appellee to amend her petition and set up the affirmative defense of estoppel under the guise of a trial amendment to conform to the proof; and (c) that the court should have held that the appellee was bound by a pre-trial stipulation constituting a waiver of the defense of estoppel.
Therefore, the questions before us involve procedural matters, for if the appellee's plea of estoppel was properly before the court there is no merit to this appeal. At the outset it should be clearly understood that:
"There is such a privity between a decedent and the personal representative of his estate that an estoppel arising by reason of the decedent's conduct may be asserted against his representative." 19 Am.Jur., Estoppel, sec. 157, p. 813; see also 31 C.J.S., Estoppel, § 132, and Moore v. Croft, 47 Idaho 572, 277 P. 423, 425.
Certainly the decedent, if living, could not be heard to question either the validity of the Texas divorce procured by him or the validity of his second marriage. Nor is there any doubt but that in an appropriate proceeding an Arizona court would have jurisdiction to question the validity of the Texas divorce decree. Such was the holding of the Supreme Court of the United States in the second case of Williams v. State of North Carolina, reported in 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366.
There is no dispute between counsel as to the principles of law above stated; their contentions vary only where the procedure followed by the trial court is concerned. It should be noted, too, that the rules of civil procedure govern in probate proceedings. Sec. 38-2007, A.C.A. 1939; In re Guardianship of Sorrells, 58 Ariz. 25, 117 P.2d 96.
The trial court in effect held that the executrix was estopped from making a collateral attack on the Texas divorce decree. The executrix first contends that the appellee's failure to affirmatively plead estoppel made this defense unavailable to her. The executrix relies on section 21-406, A.C.A.1939, for the proposition that the defense of estoppel is not available to a party unless it is affirmatively pleaded by way of answer or other responsive pleading. This section reads:
Ordinarily, the issue which must be pleaded as an affirmative defense will be contained in the answer. In this case the appellee (who filed the first pleading) was required to plead her affirmative defense only if a reply was absolutely necessary under the rules of procedure as it is not incumbent upon the party filing a complaint to anticipate an affirmative defense which the answer may disclose. If it was not mandatory under the rules that the appellee file a reply, it can hardly be said that any affirmative defense was waived by a failure to enter a reply. Section 21-401, A.C.A.1939, which is rule 7(a), explicitly enunciates the controlling rule: (Emphasis supplied.)
The language of this section clearly declares that a reply is mandatory only when the answer contains a counterclaim denominated as such. Moore's text on these rules fully explains the purpose of, and reason for, this particular rule: ...
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