Mortenson's Estate, In re

• Decision Date: 29 October 1957
• Docket Number: No. 6219,6219
• Citation: Mortenson's Estate, In re, 316 P.2d 1106, 83 Ariz. 87 (Ariz. 1957)
• Parties: Matter of the ESTATE of Martin Emil MORTENSON, deceased. Raymond Boyd MORTENSON et al., Appellants, v. Etta MORTENSON, Appellee.
• Court: Arizona Supreme Court

Page 1106

316 P.2d 1106

83 Ariz. 87

Matter of the ESTATE of Martin Emil MORTENSON, deceasedRaymond Boyd MORTENSON et al., Appellants, v.Etta MORTENSON, Appellee.

No. 6219.

Supreme Court of Arizona.

Oct. 29, 1957.

Wesley E. Polley, Bisbee, for appellants.

Daniel E. Moore, Bisbee, for appellee.

J.SMITH GIBBONS, Superior Court Judge.

The real issue presented on this appeal is whether a marriage between first cousins who are residents of and intend to live in Arizona is void or only voidable when solemnized in a state where such marriage is not prohibited by law.

Appellee, Etta Mortenson, hereinafter called Etta, on August 10, 1949, at Lordsburg, New Mexico, entered into a marriage ceremony with Martin Emil Mortenson, now deceased.Etta and decedent, first cousins, were both residents of Arizona, and after the ceremony returned to and continued such residence in this state until the death of Martin Emil Mortenson.

Etta petitioned for letters of administration alleging herself to be the lawful widow of decedent.One of the appellants, Raymond Boyd Mortenson, herein called applicant, as the son of decedent by a former marriage, also filed application for letters of administration, and he and other heirs filed written objections to the appointment of Etta, on the ground that she was not the surviving wife of decedent.Both the petitions and objections thereto were heard by the trial court, whereupon letters of administration were ordered issued to Etta.Applicant and the other objecting heirs appeal.

The order of preference in the appointment of an administrator of the estate of a person dying intestate under the pertinent provisions of Section 38-401, A.C.A.1939(A.R.S. § 14-417), is, first, the surviving wife and, secondly, the children.If this marriage was valid the trial court was correct in the appointment of Etta if void the petition of applicant should have been granted.The question presented is whether under the foregoing circumstances this state will recognize Etta as the surviving widow of decedent.

There is no statute in New Mexico prohibiting the marriage of first cousins, and unless applicable statutes of Arizona control, a marriage valid in the state of solemnization will be valid in Arizona.Consequently, the answer to the question presented herein depends upon whether our applicable statutes prevent us from recognizing the validity of this marriage.So far as pertinent Section 63-107, 1952 Supp. 1939 A.C.A.(now, A.R.S. § 25-101) provides as follows:

'The marriage of a person of Caucasian blood with a Negro, Mongolian, Malay or Hindu shall be null and void.The marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters, of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews, and between first cousins, is prohibited and void.'

Section 63-108, A.C.A.1939(A.R.S. § 25-112), reads as follows:

'Marriages valid by the laws of the place where contracted, are valid in this state; provided, that marriages solemnized in any other state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, and parties residing in this state can not evade its laws as to marriage by going into another state or country for the solemnization of the marriage ceremony.'

Prior to 1942Section 63-107, supra, provided that marriages by parties of the designated degree of consanguinity were 'incestuous and void', but in that year the section was amended in some respects, among which was to change the wording so as to provide that such marriages are 'prohibited and void'.Etta...