Milliman's Estate, In re

Citation415 P.2d 877,101 Ariz. 54
Decision Date22 June 1966
Docket NumberNo. 8142--PR,8142--PR
PartiesIn the Matter of the ESTATE of Willard J. MILLIMAN, Deceased.
CourtSupreme Court of Arizona

Chandler, Tullar, Udall & Richmond, D. B. Udall, Tucson, for Farmers Ins. Group, appellant.

Rees, Estes & Browning, Neil J. Ward, Donald Estes, Tucson, for appellee Neil J. Ward, administrator de bonis non of Estate of Willard J. Milliman, deceased.

McFARLAND, Justice.

This petition for review was accepted to review a decision of the Court of Appeals, Div. No. 2, 2 Ariz.App. 155, 406 P.2d 873, modified on rehearing, 2 Ariz.App. 338, 409 P.2d 54, which affirmed an order by the Superior Court of Pima County voiding all acts of an administratrix insofar as such acts affected the rights of certain survivors of the decedent, including an order authorizing the compromise and settlement of a claim for wrongful death.

The events leading up to this appeal are stated as follows: Willard J. Milliman, hereinafter referred to as Milliman, on July 15, 1950, married one Clarabelle Jean Woodcock, hereinafter referred to as Clarabelle, in the State of New York. Willard John, Henry Roger, Beverly Ann, John Lewis, Michael Andrew, and Susan Jane were children all born of this marriage. On April 12, 1956, Milliman left his wife, Clarabelle, and six children at home in New York and departed for work. He never returned. Milliman arrived in Willcox, Arizona, in the summer of 1956. While in Willcox, he married Maxine Roberts, whom he subsequently divorced. No children were born of this marriage. Thereafter, Milliman married Lucy Mae Horn, hereinafter referred to as Lucy, in Lordsburg, New Mexico, on February 6, 1960. Lucy, at the time of her marriage to Milliman, was the mother of an illegitimate child, one Hollis C. Rodriguez. In the course of her marriage to Milliman, she gave birth to Wayne Alexander Milliman. Another child was born of this marriage, but died shortly after its birth. The record on appeal shows that Milliman obtained only one divorce, that being the one from Maxine. On March 2, 1961, Milliman was killed in an automobile accident, which occurred in the State of Arizona.

Lucy filed a petition for letters of administration on May 2, 1961, alleging:

'That the names, ages and residences of the heirs of the decedent, so far as known to the petitioner, are as follows, to-wit:

'LUCY M. MILLIMAN, legal age, 220 W. Prince Road, Tucson, Arizona, wife;

HOLLIS GORDON MILLIMAN, 2 years, 220 W. Prince Road, Tucson, Arizona, son;

WAYNE ALEXANDER MILLIMAN, 8 months, 220 W. Prince Road, Tucson, Arizona, son;

JOHN MILLIMAN, legal age, Fredonia, N.Y., father;

GERTRUDE MILLIMAN, legal age, Fredonia, N.Y., mother.'

Notice was given only to the persons mentioned above. Lucy was appointed administratrix on May 15, 1961. On that same date, she petitioned the court in her individual capacity and as administratrix for authorization to compromise and settle for $50,000.00, the wrongful-death claim arising out of the auto crash. The petition was approved, and, in compliance with the court's order, the Farmers Insurance Company, hereinafter referred to as Farmers, paid Lucy the money. Lucy received individually $33,333.33, while Hollis Gordon Milliman (evidently the Rodriguez child) and Wayne Alexander Milliman received $8,333.33 and $8,333.34, respectively, which funds were placed in court-controlled accounts in the Catalina Savings and Loan Association in Tucson. Lucy was appointed as guardian of these estates. On July 27, 1961, Lucy filed the final account, and petitioned for a final discharge as administratrix. Discharge was granted by the court commissioner on August 24, 1961.

On April 25, 1962, Neil J. Ward, hereinafter referred to as Ward, on behalf of Clarabelle and her six children, filed a petition to revoke the letters of administration issued to Lucy, alleging that at the time Lucy filed her petition to be administratrix she was not Milliman's legal widow; that Lucy knew of the existence of Clarabelle and the six children; and that Lucy gave no notice to these heirs even though she knew of their existence. On December 13, 1962, a hearing was held on this matter before Pima County Court Commissioner Marks, and a record was made. Clarabelle testified, in part, as follows:

'Q Now Mrs. Childs (Clarabelle remarried subsequent to Milliman's death), during the period that Mr. Milliman was gone, did you ever institute any divorce proceedings in New York State or anywhere seeking a divorce against Willard Milliman?

'A No.

'Q During that time that he was gone from April 12th, 1956, up until the date of his death, were you served with any papers in a divorce action wherein Willard Milliman was the plaintiff and you were the defendant?

'A None at all.

'Q None at all?

'THE COMMISSIONER: I might ask one more question on that.

Although not served with any papers during the period from April 12, 1956, until his death, did you through any other person or directly ever learn that he may have instituted or obtained a divorce against you in the courts of any state, in courts other than New York, or for that matter in the New York courts?


The record shows that no papers or notice of any proceedings for divorce had ever been served upon Clarabelle either before or after Milliman left New York. In October of 1957 he married Maxine Roberts of Willcox. That marriage was terminated by divorce in Pima County shortly before the marriage of Milliman to Lucy. Margaret Bonnin, Lucy's mother, testified that the decedent had said some two years before her daughter's marriage to him that he was divorced from Clarabelle in New York, and that he had one child that was up for adoption, and that his folks would not have anything to do with him because they were Catholic.

Clarabelle stated that she knew of Milliman's death very shortly after it occurred, and that she had not filed any action with regard to the estate until the following year because she 'didn't think there was anything there.' Lucy's mother testified that Milliman's relatives who attended the funeral informed her that Milliman was still married to Clarabelle as they knew of no divorce, and that there were six children of that marriage. She stated that Lucy was told this information the day of Milliman's funeral. She further stated that Lucy had mentioned to Farmers' representative that Milliman and Clarabelle had a child. In an order dated December 13, 1962, the court revoked Lucy's letters of administration and Ward was appointed administrator de bonis non.

On May 22, 1963, a hearing was held on Ward's petition to have the court set aside its order approving the compromise and settlement of the wrongful-death claim. Lucy testified that Milliman had told her of his marriage to Clarabelle and that he had one child as a result thereof, which child she believed was subsequently adopted. Lucy stated that she informed the representative of Farmers of this prior marriage and child. She stated that Milliman had told her that he was divorced from Clarabelle. Margaret Bonnin testified that she was present when Lucy, prior to the settlement, told Farmers' representative of the prior marriage, divorce, and of the child in New York. Tom Mabry, the representative of Farmers who had handled Lucy's claim, testified that he had never been informed by Lucy or her mother of the existence of the prior marriage and child, and that his records did not disclose any such information. Mr. Udall, the attorney for the insurance company, who had prepared the paperwork for Lucy in settling the claim, made an avowal to the court: 'I have absolutely no recollection of anyone telling me about the wife or adopted child at any time until I was first contacted by Mr. Ward.'

Farmers contends the trial court erred when it set aside its earlier order authorizing settlement of the wrongful-death claim. Farmers alleges that the trial court had jurisdiction to enter the order, and that in the absence of fraud on the part of Farmers (legal counsel for Farmers had prepared all the paperwork for Lucy), the order should stand. Farmers further alleged that the failure of Clarabelle to file a motion to set aside the order within six months after the order was entered precluded the court from entering its order to set aside its earlier order. 1 Rule 60(c) does not afford the only grounds for setting aside a judgment.

A court which makes a void order may at any time on its own motion or the motion of party move to set aside such void order. 'The void judgment creates no binding obligation upon the parties, or their privies; it is legally ineffective.' 7 Moore's Federal Practice § 60.25(2) (2d ch. 1955), p. 263, footnote #29. This rule of law is succinctly stated in Moore's Federal Practice, supra:

'The theory underlying the concept of a void judgment is that it is legally ineffective--a legal nullity; and may be vacated by the court which rendered it at any time. Laches of a party can not cure a judgment that is so defective as to be void; laches cannot infuse the judgment with life.' 7 Moore's Federal Practice § 60.25(4) (2d ed. 1955), p. 274.

If Milliman was not divorced from Clarabelle, then the marriage between Milliman and Lucy was void ab initio, and the orders of the court which allowed Lucy to settle the wrongful-death claim as the surviving spouse were also void. The law is well settled that a marriage between persons, one of whom is married to another, is void. 35 Am.Jur., Marriage § 148; and the second marriage is 'good for no legal purpose.' 35 Am.Jur., Marriage § 148.

The facts of this case show there was a valid marriage between Clarabelle and Milliman, and the issue of this marriage was six children; that Milliman had never divorced Clarabelle before marriage to Lucy; that he left New York on April 12, 1956, arriving in Arizona during the summer of that year; that in October 1957 he married Maxine Roberts, which marriage was...

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