Winder's Estate, In re

• Decision Date: 13 June 1950
• Docket Number: No. 14152,14152
• Citation: 98 Cal.App.2d 78,219 P.2d 18
• Parties: In re WINDER'S ESTATE. SMITH v. WINDER.
• Court: California Court of Appeals Court of Appeals

Page 18

219 P.2d 18

98 Cal.App.2d 78

In re WINDER'S ESTATE SMITH v. WINDER.

No. 14152.

District Court of Appeal, First District, Division 1, California.

June 13, 1950.

Rehearing Denied July 13, 1950.

Hearing Denied Aug. 10, 1950.

Dorothy Winder Smith, Oakland, in pro per.

Breed, Robinson & Stewart, Oakland, for respondent.

SCHOTTKY, Justice pro tem.

The decedent, A. H. Winder, died on or about March 10, 1948, in Alameda County, California, and thereafter respondent, Rulura T. Winder, filed a petition for letters of administration alleging that she was the surviving spouse of said decedent. Her petition was regularly set for hearing on March 24. On March 30, appellant Dorothy Winder Smith and Beatrice Martens, daughters of decedent A. H. Winder, filed an opposition to respondent's petition, and also a petition for letters of administration for themselves.

The hearing on both petitions for letters and the opposition to respondent's petition were consolidated and set for hearing on April 14, 1948, and were continued to June 29 for trial. On June 29 the hearing was continued to July 6. In the meantime, the Central Bank of Oakland was appointed special administrator of decedent's estate. On July 6, appellant and Beatrice Martens appeared each with counsel who had previously represented them, and substituted a new attorney to appear for both of them, and through said attorney sought a further continuance of the matter. The court permitted respondent to introduce some evidence in support of her petition and then continued the matter to July 8 for the purpose of allowing appellant's and Beatrice Martens' new attorney to cross-examine respondent and to present evidence. On July 8, the hearing was again resumed and evidence was introduced by respondent and appellant.

The matter was then continued to August 5, 1948, at which time further evidence was introduced and the matter submitted on briefs. The minutes of September 21, 1948, show that on that date the deposition of respondent which had been taken by appellant and the certified statement of Walter G. Purtzer, Clerk of the District Court of Madison County, Nebraska, were admitted in evidence and the matter ordered submitted.

On September 24, respondent's petition for letters of administration was granted and respondent appointed administratrix. On September 27, 1948, the court by a written order found that respondent Rulura T. Winder was the surviving spouse of the decedent, and appointed her administratix, denied the petition of appellant and Beatrice Martens for letters, and overruled the objections and opposition to respondent's petition. This appeal is from said order, appellant appearing in propria persona.

Appellant has made numerous contentions in her briefs but the principal issues presented upon this appeal, as stated by appellant, are: (1) Was Rulura T. Winder (or Haley, as appellant contends) the common-law wife of Herbert A. Haley by virtue of a common-law reconciliation and remarriage of spouses in the State of Nebraska? (2) Was Rulura T. Winder ever validly married to A. H. Winder? The record is comparatively brief, consisting of a reporter's transcript of 59 pages, a clerk's transcript, and a number of documentary exhibits including the aforementioned deposition of respondent, which is unsigned.

Before discussing the legal questions involved, we shall summarize briefly the evidence as shown by the record. Due no doubt to her inexperience in presenting legal matters, appellant has made many statements as to purported facts which do not appear in the record, which statements, of course, we must disregard.

Respondent Rulura T. Winder, nee Tostevin, was married to Herbert A. Haley in Superior, Wisconsin, on September 30, 1891. One child, a daughter, was born of the marriage. In July, 1903, in an action filed by her in Superior, Wisconsin, respondent was granted a divorce. In 1905, at his request, according to her testimony, she went to Nebraska and joined Haley, and upon his statement that they would be remarried they lived together as man and wife in Norfolk, Nebraska, from 1905 to 1907. The following quotation from the transcript is illuminating as to the relationship of respondent and Haley during that time: The Court: Why did you live with him? The Witness: I had no choice. I met him in a town in Nebraska and he had become entangled with someone else, so it was impossible to get a new license, and he kept saying, 'I will get it in the next town,' and never got it. The Court: In other words, you would have gone through a marriage ceremony with him? The Witness: Oh, yes, I wouldn't have joined [him] if I hadn't expected to. The Court: You would have remarried him? The Witness: Oh, yes. The Court: But he kept telling you he was tied up with some other woman and he couldn't get a license? The Witness: That is it, exact. The Court: You kept on living with him. Let's not be misunderstood. But you understand what 'living with him as his wife' means, don't you? The Witness: Well, he never thought the divorce mattered. The Court. I don't mean that, but, Mrs. Winder--The Witness: Yes? The Court:--you were divorced from him first, weren't you? The Witness: Yes. The Court: All right. Then you went back with him? The Witness: Yes, because he asked me to come. The Court: All right. And you lived with him as his wife? The Witness: Yes. The Court: All right. And you intended to remarry him? The Witness: Yes. The Court: But that was never done? The Witness: No.'

In 1907, no license to marry having been obtained by Haley, respondent left him and returned to the home of her parents in Wisconsin, and in March, 1908, a marriage ceremony was performed there between respondent and A. H. Winder. This marriage was made void by the vacating of the divorce decree which Winder had obtained in Nebraska from his former wife, Mary J. Winder. Winder then filed an action for divorce in Colorado against Mary J. Winder and she appeared in said action and was granted a divorce upon her cross-complaint. On May 4, 1911, respondent and Winder were, according to the marriage certificate introduced in evidence, married in Council Bluffs, Iowa. On February 6, 1909, according to the marriage certificate introduced in evidence, Herbert A. Haley was married to one Anna A. Miller in Madison County, Nebraska. The certificate of the Clerk of the District Court of Madison County, Nebraska, stating that there was no record of any divorce between respondent and Herbert A. Haley between 1905 and 1912, was admitted in evidence, as was also a death certificate showing that Haley died in Madison County on January 26, 1935. Respondent testified that she and Winder lived together as man and wife from 1911 on and that they moved to California in 1912 and were residents of California until Winder's death. Respondent testified that she and Winder took vacation trips each year, usually out of the state, and stayed overnight at various hotels and resorts. She testified particularly as to taking these trips after the date of Haley's death in 1935 and of staying overnight at Las Vegas, Nevada, and at the Grand Canyon in Arizona.

Other facts appearing from the record will be hereinafter set forth.

Appellant's first major contention is that respondent Rulura T. Winder became the common-law wife of Herbert A. Haley when she returned to him in Nebraska after her divorce from him, and that said common-law marriage was never dissolved.

Up to 1923 common-law marriages were recognized as legal in Nebraska. 'At common law no formal ceremony is essential to a valid marriage, and an agreement between the parties per verba de praesenti to be husband and wife constitutes a valid marriage, no other ceremony being necessary.' (35 Am.Jur. 198.) Although our examination of the authorities convinces us that the decisions of the Nebraska courts as to common-law marriages are substantially the same as in most jurisdictions, including California, since the validity of a common-law marriage alleged to have been contracted in Nebraska must ordinarily be determined in accordance with the decisions of that state, Civ.Code, § 63, we shall quote from some of the numerous decisions of Nebraska courts, cited by appellant, as follows: 'Hence if one party to such relation induces the other to believe in good faith that the contract is made and binding, the law will hold the party taking such advantage to the full terms of the agreement, as in other cases.' Coad v. Coad, 87 Neb. 290, at page 292, 127 N.W. 455, 457. 'The contract requisite to the creation of the marriage relation need not be expressed in any special manner, or by any prescribed form of words, but may be sufficiently evidenced by any clear and unambiguous language or conduct.' Reynoldson v. Reynoldson, 96 Neb. 270, 147 N.W. 844, syllabus. It was held that, during the period when a common-law marriage could be validly consummated, 'a man and woman, contractual capables, holding forth to the community by conduct, demeanor, and habits, that they had agreed to be husband and wife constituted a common-law marriage.' In re Estate of Tilton, 129 Neb. 872, at page 875, 263 N.W. 217, 219. 'The proof of subsequent ceremonial marriages by each of the parties is evidence to be considered in determining whether a common-law marriage was entered into, but is is not conclusive. The subsequent denial of a common-law marriage by the parties cannot destroy its validity any more than a subsequent denial of a ceremonial marriage can change the status created by it. Public policy forbids that the permanence of the marriage relation, even though entered into under common-law rules, should depend upon any such whimsical contingency. The evidence, if believed, is sufficient to meet the well-stated rules announced in Re Estate of Lust, (Ghelin v. Johnson) 186 Minn. 405, 243 N.W. 443.' Wilson v. Wilson, 139 Neb. 153, at page 157, 296 N.W. 766, 786. And in Collins v. Hoag &...