Levy v. Blakely

• Decision Date: 16 January 1933
• Docket Number: Civil 3247
• Citation: Levy v. Blakely, 41 Ariz. 327, 18 P. 2d 263 (Ariz. 1933)
• Parties: BEN LEVY and TERESA LEVY GUERRERO, Appellants, v. ROSS H. BLAKELY, as Administrator of the Estate of GABRIEL LEVY, Deceased, Appellee
• Court: Arizona Supreme Court

18 P.2d 263

41 Ariz. 327

BEN LEVY and TERESA LEVY GUERRERO, Appellants, v. ROSS H. BLAKELY, as Administrator of the Estate of GABRIEL LEVY, Deceased, Appellee

Civil No. 3247

Supreme Court of Arizona

January 16, 1933

APPEAL from an order of the Superior Court of the County of Mohave. D. A. Bridges, Judge. Order affirmed.

Mr Louis L. Wallace and Mr. Carl D. Hammond, for Appellants.

Mr Charles P. Elmer, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from an order of the superior court of Mohave county granting to Ross H. Blakely, hereinafter called appellee, letters of administration of the estate of Gabriel Levy, deceased.

The facts necessary to a determination of the case, with one exception, are not in serious dispute, and we state them as follows: Gabriel Levy died intestate on or about January 28th, 1932, leaving estate of the estimated value of $8,000. A petition for letters of administration was filed by appellee, as the nominee of Jennae Sarette Levy, a niece of the deceased, who resided in San Francisco. At the same time another petition asking for letters was filed jointly by Ben Levy and Teresa Levy Guerrero, hereinafter called appellants who claimed to be the only surviving children of the deceased. In accordance with the statute, the petitions were heard together, and at the close of the hearing the court denied the petition for appellants and granted that of appellee. Written findings of fact and conclusions of law were filed, and appellee duly qualified as administrator and is so acting at the time of this appeal.

From the evidence it appears that the deceased during the year 1893 was living in Mohave county, Arizona. Some time during that year he became acquainted with a woman known as Tula Eshom or Tula Lucero. This woman had legally married one Jose Lucero in 1883, and there were born as the result of said marriage four children. In 1889 she left Lucero, and, so far as the evidence shows, never again lived or cohabited with him. Shortly after her meeting deceased, he asked her to live with him. The evidence is in dispute as to whether or not she was to act as his wife or his mistress, but at all events she did live and cohabit with him from the year 1893 [41 Ariz 329] to 1902. During this period there were born to her two children, the appellants herein. There is evidence in the record from which the court could have found that these children were also the children of deceased, and for the purposes of this opinion we shall assume they were, although the findings of fact by the trial court are to the contrary on this point.

During all of the period that deceased and Tula Lucero were living together the marriage relation theretofore existing between her and Jose Lucero had never been dissolved either by death or divorce. Some time in the year 1912, and ten years after she had ceased cohabiting with deceased, her marriage with Lucero was duly dissolved by a court of competent jurisdiction, and about a year later she married one Juan Eshom, the ceremony being performed by deceased, who at that time was the justice of the peace. We think these facts sufficient for the determination of the legal questions involved in the case.

It is claimed by appellants and admitted by appellee that the right to letters of administration is fixed by statute, and that children of the deceased are entitled to such letters in preference to more remote relatives or their appointees. It is further agreed by both parties that the children entitled to such preference must be legitimate or legitimized in accordance with the law.

The dispute is as to whether or not appellants, who admittedly on the facts could not be legitimate children in the ordinary sense of the term, were legitimized by statute. It is contended by appellants that paragraphs 3095 and 3098 of the Civil Code of 1901 had this effect. They read as follows:

"3095. When any unmarried persons who have heretofore lived together as husband and wife, and who have had a child or children born out of wedlock, shall have intermarried with each other, such child or children so born out of wedlock, shall be and the same are hereby declared to be legitimate, and entitled to all the rights and privileges of children born in wedlock."

"3098. All persons who at any time heretofore have lived together as husband and wife for the period of one year or more, and who shall continue to live together for the period of one year from and after the time this chapter takes effect, or until one of the parties shall die, if death occurs before the expiration of one year after this chapter takes effect, shall be considered as having been legally married, and the children heretofore or hereafter born of such cohabitations are declared legitimate."

It is obvious, we think, that paragraph 3095 has no application under the facts of the present case. By its terms it applies only to unmarried persons who have lived together as husband and wife and have a child born, and who afterwards intermarry with each other. Since Tula Lucero was not an unmarried person at the time she was living with deceased and never at any time married him, there can be no serious contention by appellants that this section has the effect of legitimizing them. Their real reliance, however, is on paragraph 3098, supra, and it is the interpretation of this paragraph which will determine the case.

The primary question for our consideration is whether the paragraph is one whose true purpose was the legitimization of children, or whether it was intended to validate contractual marriages, the effect of such validation on children being an incidental one. In order to determine this, it is necessary that we review briefly the common and the statutory law governing the marriage relation and the legitimacy of children. Under the common law, legitimate children were only those born in and as a result of a lawful marriage. Children not so born were held illegitimate, even though their parents intermarried after their birth, and nothing but the action of Parliament had the power to legitimize them. For this reason, following the American adoption of the common law, many, if not most, of the states have passed statutes which have the effect under certain circumstances of legitimizing children born out of lawful wedlock, but it must always be remembered that such legitimization is purely the creature of the statute and is effected only in accordance with the terms thereof.

What is necessary to constitute a lawful marriage? Under the common law, marriage was held to be a civil contract creating a certain status. The essentials of such contract were originally capacity and consent. It was necessary that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract and consummated by their cohabitation as man and wife, or their mutual assumption openly of marital duties and obligations. 38 C.J. 1316. In addition thereto, in England the common law required a form of religious solemnization also, and the doctrine that marriages could be valid per verba de praesenti or per verba de futuro followed by cohabitation alone was expressly repudiated. Regina v. Mills, 8 Reprint 844, 17 E.R.C. 66; Beamish v. Beamish, 9 H.L. Cas. 274, 11 Reprint 735.

In the United States, however, the large majority of the states have recognized the contractual marriage made without any formal solemnization by an authorized person, and it is usually, though incorrectly, called "common law" marriage. Kent. Com., vol. 2, § 26, p. 74; 38 C.J. 1315, and note. In some jurisdictions, however, this doctrine of contractual marriage without solemnization has always been rejected, and many other states which formerly accepted it have since specifically abolished it by statute. The courts of this state have never been called upon to pass expressly upon this question. The matter is one for regulation by the legislature, and it is therefore to the statutes that we must turn to determine whether or not the contractual marriage ever existed in Arizona and, if so, whether and when it was abolished.

In 1865 the legislature of Arizona adopted an act regulating marriages (Laws 1865, p. 58) which was carried forward into the Comp. Laws of 1877 (sections 1891, 1896, 1898). The essential provisions of that Code read as follows:

"Section 1. Marriage is considered in law as a civil contract, to which the consent of the parties is essential."

"Section 6. The governor of the Territory, every judge and justice of the peace, and every clergyman of any denomination, or licensed preacher of the gospel, may perform the ceremony of marriage in this Territory."

"Section 8. Every person having authority to join others in marriage shall keep a record of all marriages solemnized before him, and within three months transmit a certificate of every marriage (containing both christian names and surnames) to the recorder of the county in which the marriage took place. . . ."

Nothing whatever is said as to whether contractual relations alone constituted a valid marriage, and no provision was made for a license to be taken out as a preliminary to the solemnization of marriage.

In 1887 the laws were recodified. At that time the above provision declaring marriage to be a civil contract was dropped. That relating to the persons authorized to solemnize marriage was readopted in modified form, and paragraph 2088 was added (Civ. Code 1887). This paragraph reads as follows:

"2088. Any person desirous of marrying shall apply to the county recorder of the county, and shall receive from him a license directed to the persons authorized by law to solemnize the rites of...