Trigg's Estate, In re

• Decision Date: 03 June 1966
• Docket Number: CA-CIV,No. 1,1
• Citation: 414 P.2d 988,3 Ariz.App. 385
• Parties: In the Matter of the ESTATE of C.H. TRIGG, also known as Clarence H. Trigg, Deceased. Marjorie H. Trigg BERGMAN, Appellant, v. Donald H. TRIGG, Helen Gardner Cypert and Laura Lee Trigg, Appellees. 186.
• Court: Arizona Court of Appeals

Page 988

414 P.2d 988

3 Ariz.App. 385

In the Matter of the ESTATE of C.H. TRIGG, also known as Clarence H. Trigg, Deceased.

Marjorie H. Trigg BERGMAN, Appellant, v. Donald H. TRIGG, Helen Gardner Cypert and Laura Lee Trigg, Appellees.

No. 1 CA-CIV 186.

Court of Appeals of Arizona.

June 3, 1966.

Rehearing Denied July 5, 1966.

Westover, Keddie & Choules, by William H. Westover, Yuma, for appellant.

Brandt & Baker, by Ralph F. Brandt, Yuma, Benton & Case, by F. Keith Benton, Yuma, for appellees.

DONOFRIO, Judge.

This is an appeal from a judgment admitting the last will and testament of Clarence H. Trigg, deceased, to probate and denying the contestants' opposition to said probate.

The petition was filed by decedent's son, Donald H. Trigg, who was named executor in the will. Appellant, Marjorie Trigg Bergman, was contestant and opposed the will claiming that her common-law mar riage to the decedent invalidated the will under § 14--134 A.R.S. and that as decedent's wife she was entitled to letters of administration. The matter was tried before the court as a will contest and the court made findings of fact and conclusions of law and denied contestant's application for letters and opposition to the will and admitted the will to probate.

The deceased, Clarence H. Trigg, had been a resident of Yuma County for some forty five years prior to his death on the 18th of November, 1963. He left surviving him his son Donald and a granddaughter who together with a Mrs. Helen Cypert were beneficiaries under the will in question which was executed by him on August 10, 1959. He was unmarried at the time. Mr. Trigg, also referred to as decedent, became acquainted with appellant, also referred to as Marjorie, in 1949 while she was married to a serviceman who was stationed in Yuma. She and her husband rented an apartment from him. This apartment was across the street from Trigg's living quarters and he frequently visited with her. The husband was transferred from Yuma the early part of 1950 and several months later was discharged from the service. Marjorie and her husband returned to live in Yuma and the husband was given a job by Mr. Trigg. A close relationship apparently developed between decedent and appellant. In the fall of 1950 appellant returned to Florida with her husband and kept in touch with decedent by letters and phone calls. In 1960 she returned to Yuma for a few days as decedent's guest at which time she admits carrying on an intimate affair with him.

After appellant returned to Florida she filed an action for divorce from her husband which was granted on May 23, 1960. On May 26, decedent left Yuma for Jacksonville, Florida, and before leaving stated that he was going to Jacksonville to marry appellant. In Florida, decedent presented appellant with an engagement ring and made statements to others that he was much in love with her and that they were going to be married. According to appellant, decedent brought certain papers to her around noon on May 28th stating she had to sign them in order for them to secure a marriage license. She signed them without reading their contents. In the evening he returned to her and they then asked ministers of her church to marry them but were turned down because they both had been divorced. They drove around the city and found a church that was open, went inside and had the minister perform a marriage ceremony after which they signed the church register. She was given a wedding ring at the time. They spent the night and consummated the marriage in a motor lodge. The next day decedent declared to witnesses that they had been married. They thereafter visited her parents in Georgia where it was announced to the family and friends that they were married. On their way back to Yuma they visited friends telling them of their marriage. In Yuma they lived and held themselves out to the general public as married. They appeared as husband and wife on legal instruments which they executed including deeds, financial statements, income taxes, and health and accident policies. They also made trips to foreign lands as husband and wife.

If decedent was married to appellant the will made by him before their marriage would ipso facto be revoked unless he had mentioned or provided for her as stated in A.R.S. § 14--134. Estate of Anderson, 14 Ariz. 502, 131 P. 975 (1913); Estate of Stark, 52 Ariz. 416, 82 P.2d 894 (1938). The will does not mention appellant and there is no evidence that any provision was ever made by decedent for her within the meaning of the law, therefore, the sole issue is whether appellant was the lawful wife of decedent at the time of his death.

Our statutes require a license and the solemnization of marriages contracted within this state, A.R.S. § 25--111. They specifically provide, however, for recognition of the validity of marriages valid by the laws of the place where contracted, A.R.S. § 25--112. We also recognize a valid common-law marriage of another jurisdiction. See Roy v. Industrial Commission, 97 Ariz. 98, 397 P.2d 211 (1964). The ceremony which forms the basis of the claimed marriage having occurred in Florida we apply the laws of that jurisdiction. Florida recognizes common-law marriages. See In re Colson's Estate, Fla., 72 So.2d 57 (1954); Chaachou v. Chaachou, Fla., 73 So.2d 830 (1954); Jordan v. Jordan, Fla., 89 So.2d 22 (1956).

The court in its findings found that a marriage ceremony took place and that it was performed by a person and in a church. His findings in this respect are supported by the evidence and cannot be set aside. The findings of a trial court unless 'clearly erroneous' cannot be set aside. Rule 52(a), Rules of Civil Procedure, 16 A.R.S. In re: Estate of Bond Sneed McCauley, 101 Ariz. 8, 415 P.2d 431 (decided by Arizona Supreme Court May 11, 1966), Lehman v. Whitehead, 1 Ariz.App. 355, 403 P.2d 8 (1965). The appeal therefore resolves itself around the validity of the ceremony into which the parties entered.

We set forth the findings pertinent to the question. The court found that decedent represented to appellant that they were going to get married and that he made arrangements for their marriage ceremony, that in his mind these were false and fraudulent representations, that by these false and fraudulent representations he caused appellant to stand with him before a minister in a church and go through a wedding ceremony. The court further found that decedent had informed appellant before the marriage that he was going to secure a marriage license and had her sign some papers but in fact no legal license was obtained or marriage certificate signed. Further, that from ...