Villalon v. Bowen

• Citation: 70 Nev. 456,273 P.2d 409
• Decision Date: 06 August 1954
• Docket Number: No. 3778,3778
• Parties: VILLALON v. BOWEN.
• Court: Supreme Court of Nevada

Page 409

273 P.2d 409

70 Nev. 456

VILLALON v. BOWEN.

No. 3778.

Supreme Court of Nevada.

Aug. 6, 1954.

McCarran, Rice, Wedge & Blakey, Reno, for appellant.

John S. Sinai, John W. Coulman and David P. Sinai, Reno, for respondent.

MERRILL, Justice.

This is an appeal from judgment impressing a trust upon assets in the hands of appellant, which assets had, prior to distribution, constituted the estate of appellant's deceased husband. The essential question involved is this: the probate court having distributed the estate to appellant as widow of the deceased, did the court below in this independent suit err in decreeing that appellant in fact was not decedent's widow; that she had wrongfully concealed this fact from the court and from those entitled to know and had thus fraudulently advanced her claim to the estate; that equity should intervene to prevent her from enjoying the fruits of her fraud by impressing upon the estate distributed to her a trust in favor of those entitled to it under the will of decedent?

In 1946 appellant was married to Charles Benjamin Knox in Virginia City, Nevada. In 1949 she commenced a suit for divorce in Washoe County, Nevada. While that suit was pending Knox died. Three days later, August 17, appellant, under the name of Geral Phyllis Knox filed her petition for letters of administration of the Knox estate.

Knox had left a will executed in 1941 naming one Renwick Thompson of San Diego, California as executor. On September 4, 1949 Thompson filed a petition for probate of the will. Appellant promptly filed objections to probate upon the ground that the will had been executed prior to her marriage to Knox and thus had been revoked by operation of law. She then went to San Diego and conferred with Thompson, representing herself to be Knox's widow and sole heir at law. She prevailed upon Thompson to file a renunciation of his right to act as executor.

Appellant, without opposition, was duly appointed administratrix and proceeded to administration of the estate. In June, 1950 the probate court ordered distribution to her of the entire estate.

In March, 1951 information was received by Thompson which, upon investigation, brought to light facts casting doubt upon the validity of appellant's marriage to Knox. It was discovered that in 1933 appellant, under her true maiden name of Phyllis Lucille Names, had been married to one Domingo Villalon, a native of the Philippine Islands.

Upon representation to the probate court that the estate possessed a possible equitable interest in the distributed assets, respondent Bowen was appointed special administrator. He thereupon brought this action against appellant to recover the assets distributed to her. He contended that the Villalon marriage had still been in effect at the time of the Knox ceremony; that the Knox marriage was thus rendered null and void under Nevada law. He contended that these facts had been known to appellant at the time she had secured Thompson's renunciation and her own appointment as administratrix and distribution of the estate to her and that she had been guilty of fraud.

On August 28, 1953, after trial without jury, judgment was rendered in favor of respondent, holding appellant to be trustee of the estate distributed to her by the probate court and directing that the trust estate be delivered over to respondent. From that judgment appellant has taken this appeal.

This factual outline will be amplified as appellant's various assignments of error are discussed. These we shalll discuss in six divisions.

First: Appellant contends that her marriage to Villalon had been terminated prior to her marriage to Knox by virtue of Villalon's 'civil death'.

In 1935 in Oregon, Villalon had been convicted of second degree murder and sentenced to life imprisonment in the state penitentiary. Oregon law, § 23-1407, Oregon Compiled Laws Annotated, provides: 'A person sentenced to imprisonment in the penitentiary for life is thereafter deemed civilly dead.' Our question, therefore, is as to the effect of civil death in Oregon so far as concerns a preexisting marriage.

Oregon law is silent upon the question. Decisions of courts of other states are rare. Appellant directs our attention to certain authority exemplified by the cases collected in annotation, 139 A.L.R. 1323. In these cases, however, the civil death statute was supported by statutes relating to marriage or divorce and could not be said in and of itself to have caused termination of the marital status. The only case cited which appears squarely in point is Graham v. Graham, 251 Ala. 124, 36 So.2d 316, 319. The court was there faced with a civil death statute and also with a statute providing as ground for divorce imprisonment in the state penitentiary for two years under a sentence of seven years or longer. It held that the divorce statute 'in pari materia with the civil death statute, convinces us that the legislature did not intend that the civil death statute should have the effect of dissolving the marital status.'

Oregon law, § 9-907, Oregon Compiled Laws Annotated, provides that conviction of a felony shall be ground for divorce. In our view the Oregon legislature, having expressly provided means for dissolution of a marriage to a felon, could not have intended the civil death statute to have such effect.

This would appear to be in accord with the general view that in absence of express language such statutes are not to be broadly construed. In Platner v. Sherwood, 6 Johns.Ch. 118, 129, Chancellor Kent points out that at common law civil death did not apply to persons attainted of felony but 'seems to have been confined to the cases of persons professed, or abjured or banished the realm.' In 139 A.L.R. 1308, 1310 the annotator states, '* * * even where a statute has incorporated [civil death] as a part of the punishment for crime, the courts have been reluctant to invoke it unless the express language of the statute left no escape and compelled them to do so.'

We conclude that the Villalon marriage was not terminated under Oregon law by Villalon's civil death.

Second: Appellant contends that the Villalon marriage was terminated by divorce prior to the Knox marriage. The question here is essentially one of fact rather than law. Appellant's contention essentially is that the trial court believed the wrong witnesses, a contention we would ordinarily dismiss without discussion. The facts are, however, helpful in depicting a full chronology of events and were established by depositions which are before us to the same extent as they were before the trial court.

We note, therefore, that after serving a few years of his sentence Villalon was, in 1939, deported to the Philippine Islands. In 1951 his whereabouts were ascertained by Thompson. On October 29, 1951 he voluntarily appeared in the office of a Manila attorney for respondent and made affidavit that he had married appellant in Vancouver, Washington in 1933; had never heard from her since his deportation; and had never secured a divorce or annulment of that marriage.

Subsequent to commencement of this action steps were taken by respondent to establish these facts by the taking of Villalon's deposition. In that deposition taken in April, 1952, Villalon stated that he had in truth obtained a divorce from appellant in the Philippine Islands during the Japanese occupation in 1943; that he was unable to obtain official proof since all court records had been destroyed; that he had understood his affidavit to refer only to an American divorce. Opposing this deposition were the depositions of two attorneys who had taken the affidavit and twice conferred with Villalon with reference to the matter. They leave little doubt but that any such limitation could never have been intended or understood to apply. The interviews and affidavit obviously were for the purpose of determining the present marital status of Villalon and appellant. One of these attorneys further testified that in June, 1952 Villalon had offered to retract his testimony relative to the Philippine divorce if paid 5,000 pesos.

Fortifying respondent's position were a letter from the Philippine judge and depositions of court officials who, while without benefit of records, nevertheless gave convincing testimony to the effect that they had no recollection whatsoever of such a divorce proceeding; that divorce is extremely rare in the Philippines; that had one occurred they certainly would have recalled it, particularly one between a Filipino and an American.

Supporting Villalon's deposition were the depositions of two of his friends who had known him since boyhood. One testified that he had taken Villalon to the lawyer (who since had died) who had represented him in the divorce proceedings; and that he had later been shown a copy of the divorce decree (which copy was never produced; its absence never explained). The other testified that he had been present in court when the matter was tried and the decree granted. The testimony of both was vague and uncertain.

The court below stated, 'There is no credible testimony to show any divorce or annulment and there was overwhelming evidence to show that a divorce was not granted at the time Villalon says there was one granted.' With this statement we are in full accord after a study of the record.

Appellant asserts the presumption of validity of the Knox marriage, a presumption discussed by this court, In re Aguirre's Estate, 57 Nev. 275, 280, 62 P.2d 1107, 1109, 65 P.2d 685 where other authority was quoted as follows: "When there has been a formal marriage, according to legal requirements, the law will presume the competency of the parties to enter into the marriage contract, and will presume that any former marriage of either of the parties was dissolved by death or divorce. This is based on the desire of the law to protect innocence, morality, and legitimacy rather than to presume the continuance of...