Kelley's Estate, In re

• Decision Date: 24 April 1957
• Citation: 210 Or. 226,310 P.2d 328
• Parties: In the Matter of the ESTATE of John L. KELLEY, Deceased. Shelton D. KELLEY and John W. Kelley, Appellants, v. Ruth M. KELLEY, Respondent.
• Court: Oregon Supreme Court

Page 328

310 P.2d 328

210 Or. 226

In the Matter of the ESTATE of John L. KELLEY, Deceased.

Shelton D. KELLEY and John W. Kelley, Appellants, v. Ruth M. KELLEY, Respondent.

Supreme Court of Oregon.

Argued Oct. 4, 1956.

Decided April 24, 1957.

C. R. Sloniger, Portland, argued the cause and filed a brief for appellant.

C. E. Wheelock, Portland, argued the cause for respondent. On the brief were Wheelock & Richardson, Portland.

Before WARNER, ^* C. J., and ROSSMAN, LUSK, BRAND, PERRY, ^** and McALLISTER, JJ.

McALLISTER, Justice.

The plaintiffs, Shelton D. Kelley and John W. Kelley, appeal from two orders of the circuit court for Multnomah county holding in effect that the marriage of their father, John L. Kelley, to the defendant, Ruth M. Kelley, was valid and that she as his widow is entitled to share with the plaintiffs in his estate.

The appellants' brief contains a detailed statement of facts, all admitted by defendant in her brief, from which it appears that the defendant was formerly the wife of Alvin Earle Gehri and resided with him in the state of Washington; that Gehri filed a suit for divorce against the defendant in the Superior Court for Pierce county, Washington; that on March 18, 1949 an interlocutory decree of divorce was granted to Gehri which provided that it did not dissolve the marriage or grant a divorce; that the applicable Washington statute authorized the entry of a final decree of divorce at any time after six months from the entry of the interlocutory decree; that on June 2, 1950, before any final decree had been entered in said divorce suit, defendant and the decedent, John L. Kelley, both of whom were then living in Oregon, were married at Stevenson, Washington, and after the marriage ceremony returned to Oregon where they lived as man and wife until the death of Kelley; that no other marriage ceremony was performed between defendant and Kelley; that on September 8, 1950, upon motion of the defendant, a final decree of divorce was entered in the Gehri suit; that on August 14, 1952, Kelley died in Multnomah county; that on August 29, 1952, upon the application of Alvin Earle Gehri, the Superior Court of Pierce county entered an amended final decree of divorce in the suit referred to above, which amended decree was entered nunc pro tunc as of September 19, 1949; that on September 3, 1952, defendant was appointed administratrix of the estate of the decedent, qualified, and has since acted in that capacity; that prior to his marriage with defendant, Kelley had made a will leaving all his property to his sons and had neither changed said will nor executed a new one after his marriage to defendant.

Plaintiffs filed a petition for the removal of defendant as administratrix on the ground that she was not the widow of decedent and on the same day also filed a petition for determination of heirship under ORS 117.510 to 117.560. The circuit court denied the petition for the removal of defendant as administratrix and entered an order determining that the heirs of the decedent, John L. Kelley, were his widow, the defendant Ruth M. Kelley and his two sons. From these orders the plaintiffs have appealed.

The principal question for determination is whether the entry on August 29, 1952, of a final decree of divorce between Gehri and defendant by the Superior Court of Washington nunc pro tunc as of September 19, 1949, pursuant to the provisions of § 26.08.230, Revised Code of Washington, validated the marriage on June 2, 1950 of defendant and the decedent, John L. Kelley. If the marriage was valid, it revoked the will executed by decedent prior to such marriage.

In Huard v. McTeigh, 113 Or. 279, 287, 232 P. 658, 661, 39 A.L.R. 528, this court, in holding invalid a marriage entered into in British Columbia in violation of a Washington divorce decree, which provided that neither party should marry for six months from the entry of said decree, stated the applicable general rules in the following language:

'The general rule, for which we take it no authorities need be cited, is that a marriage valid where solemnized is valid everywhere. The converse of this rule, however, is more applicable to the case at bar: A marriage invalid where solemnized is invalid everywhere: Hutchins v. Kimmell, 31 Mich. 126, 18 Am.Rep. 164; People v. Shaw, 259 Ill. 544, 102 N.E. 1031, L.R.A.1951E, 87. The legality of a marriage must be determined by the laws of the state in which the marriage is consummated: Ollschlager's Estate v. Widmer, 55 Or. 145, 105 P. 717; Sturgis v. Sturgis, 51 Or. 16, 93 P. 696, 15 L.R.A.,N.S., 1034, 131 Am.St.Rep. 724; Nelson v. Carlson, 48 Wash. 651, 94 P. 477. If it be conceded that this marriage is invalid in British Columbia, where the same was solemnized, and invalid in Washington, the domicile of the plaintiff and the defendant, then, if the above rule be sound law, why is it not invalid in Oregon? * * *.'

The Supreme Court of Washington has consistently held that an interlocutory decree does not dissolve the marriage and until a final decree of divorce is entered the marital relation has not been severed. See Lewis v. Department of Labor and Industries, 190 Wash. 620, 70 P.2d 298, and cases therein cited.

Section 26.04.020, Revised Code of Washington provides in part as follows:

'Marriages in the following cases are prohibited:

'(1) When either party thereto has a wife or husband living at the time of the marriage. * * *.'

The Washington Supreme Court has uniformly held that marriages entered into in violation of the above statute are void ab initio. Beyerle v. Bartsch, 111 Wash. 287, 190 P. 239; Barker v. Barker, 31 Wash.2d 506, 197 P.2d 439 and In re Gallagher's Estate, 35 Wash.2d 512, 213 P.2d 621.

The fact that respondent and Kelley continued to live together as husband and wife after the entry of the final decree of divorce on September 8, 1950, when a valid marriage could have been solemnized, did not legalize the ceremonial marriage which had been entered into by them at Stevenson on June 2, 1950 in violation of the above Washington statute. Lewis v. Department of Labor and Industries, supra.

From the admitted facts and the above authorities it is obvious that unless the marriage of defendant to Kelley was validated by the entry on August 29, 1952 of a final decree of divorce in the Gehri suit nunc pro tunc as of September 19, 1949, defendant is not the widow of decedent and is not entitled to share in his estate. The nunc pro tunc decree was entered pursuant to the provisions of § 26.08.230, Revised Code of Washington, which reads as follows:

'Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence, or inadvertence the same has not been signed, filed, or entered, if no appeal has been taken from the interlocutory order or motion for a new trial made, the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed, and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for. The court may cause such final judgment to be signed, dated, filed, and entered nunc pro tunc as aforesaid, even though a final judgment may have been previously entered where by mistake, negligence, or inadvertence the same has not been signed, filed, or entered as soon as it could have been entered under the law if applied for. Upon the filing of such final judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to six months after the granting of the interlocutory order as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment, upon the filing thereof. [1949 c 135 § 1; Rem.Supp.1949 § 988-4.]'

The above statute was enacted by chapter 135, Laws of Washington 1949 and was in effect when the ceremonial marriage was entered into by defendant and Kelley at Stevenson on June 2, 1950.

Except for minor immaterial exceptions, the above statute is an exact copy of § 133 of the California Civil Code. The Washington legislature having adopted the California statute, is normally presumed to have adopted the construction theretofore placed upon the statute by the courts of California. Washington Escrow Co. v. McKinnon, 40 Wash.2d 432, 243 P.2d 1044.

Prior to the adoption of the statute in Washington in 1949, the California District Courts of Appeal on several occasions had construed the statute. Macedo v. Macedo, 29 Cal.App.2d 387, 84 P.2d 552; Ringel v. Superior Court, 54 Cal.App.2d 34, 128 P.2d 558; In re Hughes' Estate, 80 Cal.App.2d 550, 182 P.2d 253; Armstrong v. Armstrong, 85 Cal.App.2d 482, 193 P.2d 495.

From the opinion in In re Hughes' Estate, supra, we quote the following [80 Cal.App.2d 550, 182 P.2d 256]:

'It was held in Macedo v. Macedo, 29 Cal.App.2d 387, 84 P.2d 552, that section 133 was intended to be retroactive; that it is both remedial and curative; that it violates no constitutional restriction, and that the entry of a final decree nunc pro tunc as of the date when a final decree could first have been lawfully entered was effective, by virtue of the section, to validate a marriage contracted more than one year after the entry of an interlocutory decree and before the entry of a final decree.'

The historical background and the reasons for the enactment of the California statute are set out in Macedo v. Macedo, supra, and we assume that a similar background and like reasons persuaded the Washington legislature to adopt the California statute.

In view of the interpretation placed upon the California statute by the courts of that state and presumably adopted by the Washington legislature in enacting RCW...