Romano's Estate, In re

• Court: Washington Supreme Court
• Writing for the Court: HAMLEY; SCHWELLENBACH
• Citation: Romano's Estate, In re, 246 P.2d 501, 40 Wn.2d 796 (Wash. 1952)
• Decision Date: 17 July 1952
• Docket Number: No. 32062
• Parties: In re ROMANO'S ESTATE. ROMANO et al. v. ROMANO et al.

Page 796

40 Wn.2d 796

246 P.2d 501

In re ROMANO'S ESTATE ROMANO et al. v. ROMANO et al.

No. 32062.

Supreme Court of Washington, Department 2.

July 17, 1952.

Kellogg, Reaugh, Hart & Towne, Seattle, for appellants.

Royce & Royce, Allan Pomeroy, Lenihan & Ivers, Seattle, for respondents.

HAMLEY, Justice.

In this action the executrix and legatees under a will which was purportedly revoked by the subsequent marriage of the testator, now deceased, seek to re-establish the will by having the marriage declared void as of the date of the ceremony.

The executrix and lagatees instituted the case by filing a petition contesting the rejection of the will. A demurrer was sustained and the cause was dismissed. Petitioners appeal.

The determinative facts as alleged in the petition and admitted by the demurrer, may be briefly stated. The decedent, Leonard Romano, retired from the contracting business in 1946, at the age of sixty-four. In August of that year, when nearly blind and in poor physical condition he came under the influence and domination of his newlyemployed housekeeper. She was Mary Alice Sauve, then forty years of age. Within the next eleven months, Romano, who had always lived frugally, spent eighty thousand dollars, and also took his housekeeper on a trip to Canada.

On October 22, 1947, Romano executed the will in question. The will did not mention Mary Alice Sauve. It left on dollar each to three stepsons and one stepdaughter. All of the residue was left to the petitioners, his four nieces, one of whom was named executrix.

On April 19, 1948, Romano attempted to commit suicide. From this time on, his physical and mental condition rapidly deteriorated. On the morning of June 28, 1948, without notice to his secretary or any of his relatives, Romano and Mary Alice Sauve boarded a plane for Reno, Nevada. On arrival the same afternoon, a marriage ceremony was performed. At this time Romano was mentally incompetent. He did not realize what he was doing and was incapable of entering into a contract or consenting to marriage. The trip to Reno and his participation in the marriage ceremony were procured by fraud and duress practiced by Mary Alice Sauve.

A few hours after the ceremony was performed, they returned to Seattle, arriving on the morning of June 29, 1948. Romano was never physically or mentally able to ratify or consummate the marriage, and did not thereafter voluntarily cohabit with Mary Alice Romano. He became seriously ill almost immediately upon returning to Seattle. He was taken to Maynard hospital on July 10, 1948. He became unmanageable because of his mental condition, and on July 21, 1948, was removed to a private institution for the insane. A guardianship proceeding was instituted, and on August 17, 1948, Romano was judicially declared incompetent. He died on May 30, 1950, without regaining his sanity.

Upon the petition of Mary Alice Romano, letters of administration were issued to Seattle First National Bank, on May 31, 1950. The estate subject to administration aggregates $190,000. The will in question was thereafter offered for probate. It was rejected by the superior court on the ground that it had been revoked by the subsequent marriage of the testator.

The petition contesting the rejection of the will then pleads the Nevada marriage statutes, and asks for a decree nullifying the marriage and reinstating the will, because of the alleged insanity of Romano at the time the ceremony was performed, and because of the alleged fraud, duress and undue influence exerted by Mary Alice Romano. There is also an allegation, on information and belief, that Mary Alice Sauve was, on the day of the marriage, under the age of forty-five years and afflicted with pulmonary tuberculosis in its advanced stages.

The questions presented by this appeal are whether the petition summarized above states a cause of action, and whether appellants have legal capacity to sue. The trial court answered these questions in the negative.

Appellants and respondents are agreed that this marriage, if valid, operated to revoke the prior will. See RCW 11.12.050, Rem.Rev.Stat. § 1399; Koontz v. Koontz, 83 Wash. 180, 145 P.201. They are also agreed that the marriage was valid in Washington if the requirements of the marriage law of Nevada, where the ceremony was performed, were complied with. See In re Gallagher's Estate, 35 Wash.2d 512, 213 P.2d 621; Restatement, Conflict of Laws, 185, § 121. Respondents apparently concede that, under the allegations deemed admitted, this marriage did not comply with the marriage laws of Nevada, because Romano was incapable of consenting to the marriage and because fraud inhered in the transaction. Hillyer, Nevada Compiled Laws, §§ 4050, 4067.

Respondents, however, present several reasons why they believe appellants can not prevail here, notwithstanding the fact that the marriage did not comply with the laws of Nevada. One of these reasons is that, in view of the nature of the defect in this marriage, it can not be set aside in a collateral attack after the death of one of the parties.

Respondents contend that the right to attack a marriage collaterally after death of one of the spouses is to be determined according to the law of Washington. Appellants, on the other hand, argue that this question must be determined according to the law of Nevada. We find it unnecessary to decide this question because, as we view it, the result is the same whichever law is applied.

Considering first the law of Washington, the applicable statute is RCW 26.04.130, Rem.Rev.Stat. § 8449, reading as follows:

'When either party to a marriage is incapable of consenting thereto for want of legal age or a sufficient understanding, or when the consent of either party is obtained by force or fraud, such marriage is voidable, but only at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed.'

Construing this statute, this court has held that parents were thereby precluded from suing to set aside the marriage of their daughter, where the marriage license was obtained by fraud. In re Hollopeter, 52 Wash. 41, 47, 100 P. 159, 21 L.R.A.,N.S., 847.

Appellants contend that this statute is designed only to deny relief to a party to the marriage who has taken advantage of the other party in one of the respects mentioned in the statute. Since appellants are not in that position, but claim under the injured party, it is contended that they have standing to attack the marriage notwithstanding this statute.

We do not believe that the application of the quoted statute can be so limited. Had the legislature undertaken only to specify certain classes of persons who were authorized to attack such a marriage, there might be some merit in appellants' contention. Even then, giving application to the rule of express mention and implied exclusion, there being no plainly indicated purpose to the contrary, it would seem that the legislature intended to withhold such right from persons not falling within the class mentioned in the statute.

But, in any event, the legislature has not limited itself to a designation of classes of persons authorized to sue. The quoted section of the statute expressly states that a marriage subject to such impediments is voidable, 'but only' at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed. Romano is that party and he is dead. Therefore, if the law of Washington is deemed to be controlling, appellants can not maintain this action.

If the law of Nevada is regarded as controlling with respect to appellants' right to attack this marriage, the following statutes must be considered:

' § 4050. Marriage A Civil Contract. § 1. That marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting, is essential. * * * As amended, Stats.1943, 279.' Nevada Comp.Laws, Supp.1931-41 (1945 Pocket Part).

' § 4066. When Void Without Decree Of Divorce. § 18. All marriages which are prohibited by law on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, shall, if solemnized within this territory, be absolutely void without any decree of divorce or other legal proceedings.' (Approved November 28, 1861, 94.) Hillyer, Nevada Comp.Laws (1929).

' § 4067. Marriage Of Parties Incapable Of Assentiong Or When Fraud Practiced--When Void. § 19. When either of the parties to a marriage, for want of age or understanding shall be incapable of assenting thereto, or when the consent of the father, mother, or guardian as required by section 2 hereof has not been obtained, or when fraud shall have been proved, the marriage shall be void from the time its nullity shall be declared by a court of competent authority; * * * provided further, that no marriage may be annulled for fraud if the parties to the marriage voluntarily cohabit as husband and wife after having received knowledge of such fraud. As amended, Stats.1947, 445.' Nevada Comp.Laws, Supp.1943-49.

' § 4068. When Not To Be Judged A Nullity--Insanity--Cohabitation After Disability Removed. § 20. * * * nor shall the marriage of any insane person be adjudged void, after his restoration to reason, if it shall appear that the parties freely cohabited together as husband and wife after such insane person was restored to a sound mind. * * * As amended, Stats.1947, 445.' Nevada Comp.Laws, Supp.1943-49.

' § 4069. Actions For Annulment. § 21. When a marriage is supposed to be void, or the validity thereof disputed, for any of the causes mentioned in the two preceding sections, either party may file a complaint in the probate court of the county where the parties or one of them, resided, for annulling the same; and such complaint shall be filed, and proceedings shall be had thereon, as in the case of proceedings in said court for a divorce,...