Kelsey v. Miller

This appeal, L. A. No. 8539, which will presently receive our attention, is the first in numerical order of three separate appeals pending in this court from judgments affecting the estate of Mary Moore Miller, deceased. The second appeal, L. A. No. 8894, is entitled “Frank M. Kelsey, as Special Administrator of the Estate of Mary Moore Miller, deceased, plaintiff and appellant, v. Jared H. Miller, defendant and respondent, Security Trust and Savings Bank, a corporation, Citizens’ National Bank, a corporation, and Citizens’ Trust and Savings Bank, a corporation, defendants,” and was taken by the special administrator from a judgment awarding plaintiff costs only in an action brought po compel Jared H. Miller to account to said estate for all moneys belonging to said Mary Moore Miller which might have come into his hands or that were received by him from her during a seven-year period of assumed marital relations which was terminated by her death and during which period of time said Jared H. Miller and Mary Moore Miller held themselves out to be and lived together as husband and wife. Said third appeal, L. A. No. 9013, entitled “George W. Moore, contestant and respondent, v. Jared H. Miller, as executor of the estate of Mary Moore, deceased, Lillian Hays, formerly Lillian Miller, and Bussell C. Miller, respondents and defendants,” was taken from a decree revoking the probate of the last will and testament of said Mary Moore Miller, deceased. All of said actions, including the instant ease, were doubtless brought on behalf of the collateral kindred of said decedent and arise out of the same state of facts and involve many similar issues of law and fact.

The complaint herein, L. A. No. 8539, which was twice amended, will be referred to as the “complaint,” rather than as the “second amended complaint.” The action was brought to obtain a decree of annulment of a certain deed, dated November 10, 1915, wherein the grantees, Mary Moore Miller, since deceased, and her husband, Jared H. Miller, defendant and respondent, were named as joint tenants, with the right of survivorship, in and to lot 35, Kensington Place, situate in the city of Los Angeles, and valued at $16,500. The money furnished to pay the purchase price of said real property was taken from funds acquired by the wife before marriage. Incidental to the main pur

It is claimed by appellant that two major controlling propositions have been established by the evidence, which, if given the probative force which they are entitled to receive, would inevitably compel a reversal of the judgment. These propositions may be thus summarized: First, that the decree granted to Jared H. Miller on September 15, 1909, by the circuit court of Shelby County, state of Tennessee, in the action of Jared H. Miller v. Edith C. Miller, his former wife, purporting to dissolve the matrimonial bonds theretofore existing between him and said former wife was invalid by reason of certain alleged fraudulent methods employed by Jared H. Miller in obtaining said decree, including collusive conduct on the part of both parties to said action, and said marriage not having been lawfully dissolved, the subsequent marriages of Dr. Jared H. Miller with Mary Moore were void from the beginning. Second, that if matrimonial relations which were maintained by her and Dr. Jared H. Miller were maintained in the belief that she was his lawful wife, when as a matter of law she was not such lawful wife, the deed of joint tenancy being a gift and made in the belief and under the influence of the existence of the marital state, would bring the transaction within the confidential relation clauses of sections 158 and 2235 of the Civil Code, which provides that transactions between trustee and beneficiary “by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration'and under undue influence,” and the presumption of undue influence would of itself be sufficient to vitiate the conveyance. Other allegations of fraud and undue influence practiced on the part of said Jared H. Miller are alleged to consist in false reports and representations made by him to said Mary Moore to the effect that he was a person possessed of great

The appellant claims that the matrimonial status of respondent Miller and Mary Moore Miller depends upon the validity or lack of validity of said divorce decree granted to said Jared H. Miller from Edith Chesley Miller (whose maiden name was Edith Chesley) by the circuit court of the county of Shelby, state of Tennessee, on September 15, 1909. Dr. Jared H. Miller was a graduate physician and surgeon. His marriage with Edith Chesley was solemnized by his father, the Rev. Frederick M. Miller, at North Brookfield, state of Massachusetts, in 1901. Shortly after said marriage they moved to Palmer, Massachusetts, where they resided for a period of almost three years. There a son, Chesley Russell Miller, was born. Between the years 1903 and 1905, for a period of something like two years, they lived apart. During said period he spent a year in Europe, the wife having returned to her mother’s home. In 1905 he resumed the practice of his profession at Boston and his wife rejoined him. They lived together intermittently and unhappily until April, 1909, when the wife again left Mm. A part of their early married life was spent in Massachusetts and a portion was spent in a Connecticut city, where Dr. Miller was connected with a sanitarium. Edith Chesley Miller, since the granting of the Shelby County decree, remarried and has since been living with her husband in Springfield, Massachusetts. By her deposition, which constitutes a part of the record herein, she deposed to the fact that in the month of May, 1909, a period when she and Dr. Jared H. Miller were living separate and apart, he visited her and requested her to rejoin him and accompany him to Raleigh, Tennessee, where he was to assume the position of medical director of a sanitarium, but that she refused to do so. This request, it appears from the deposition of Edith Chesley Miller, was

The complaint sets out a number of acts and matters which, it is claimed, bore directly upon the execution of said deed and which were fraudulently employed and resorted to by respondent to induce, and which did induce, said Mary Moore Miller to execute said deed. The Shelby County decree is alleged to have been procured by respondent, who was plaintiff in said divorce proceeding, upon the false and fraudulent representation made by him to said court that he had acquired a legal residence in the state of Tennessee, when as a matter of fact he was not a bona, fide resident of said state, and, further, that both parties to the proceeding were guilty of collusion in causing and procuring said decree to be made. It is next alleged that on March 29, 1911, at the city of Berkeley, county of Alameda, state of California, said Jared H. Miller pretended to contract a marriage with Irene Ayers by engaging in a ceremony which in form conformed to the marriage ceremonial, but which nevertheless was void by reason of the undissolved marriage bond then existing between respondent and said Edith Chesley Miller; that respondent and said Irene Ayers Miller lived together as husband and wife until July 13, 1914; that thereafter and on or about November 17, 1914, by the institution of a false and fraudulent action in the chancery court -of the county of Shelby, state of Tennessee, respondent was granted a decree of divorce from said Irene Ayers Miller; that at the time said action was commenced and said decree was granted said court was without jurisdiction of either the person or the subject matter of the action, for the reason that said respondent was not then nor had he ever been a bona fide resident of said state; that said Irene Ayers Miller had no notice, actual or constructive, of the pendency of said action or of the entry of said decree until September 14, 1922; that on November 20, 1914, at the city of Jackson, county of Madison, state of Tennessee, said Jared H. Miller and Mary Moore went through the form of a marriage ceremony; that thereafter, to wit, October 13, 1915, at the city of Memphis, state of Tennessee, the same parties, having complied with all the ceremonial forms and statutory requirements essential for the legal solemnization of mar

It is not claimed that any of the marriage ceremonies performed since the decree entered by the circuit court of Shelby County on September 15, 1909, were void as lacking in legal symbols or form, but it is claimed that all subsequent marriages pretended or attempted to have been entered into by said Jared H. Miller since his marriage with Edith Chesley are absolutely void for the reason that no

The complaint alleges that the court found that at the time of the trial of the instant case said Edith Chesley Miller was a resident of the state of Massachusetts and was known as Edith C. Berriman, and that Irene E. Ayers was a resident of the state of California. It is alleged by plaintiff that at the time of the Memphis marriage, October 13, 1915, Mary Moore was wholly ignorant of the fact that said Jared H. Miller was a married man, and that she was induced by the fraudulent representations made by him to believe and did believe that he was a single man, and there was no legal obstacle debarring him from contracting marriage with her, and that she continued in such belief to the time of her death. Fraudulent representations are alleged to have been made by him to her that he was possessed of large properties and wealth, which representations being accepted by her as statements of truth influenced her conduct in dealing with him to her detriment. His insolvency is also alleged.

It is alleged that after the performance of said marriage ceremony at the city of Jackson on November 20, 1914, said Miller and Mary Moore entered upon matrimonial relations and continued to live together as husband and wife to the day of her death, to wit, February 17, 1921; that as her pretended husband, but well knowing that he was not her lawful husband, said Miller gained and secured her love, affection, and confidence, and by indulging in meretricious representations beguiled her into the belief that he was her lawful husband, and that he was well qualified to manage and care for her properties and invest her funds, and thereby induced her to place into his hands for said purposes sums of monfey aggregating in excess of $200,000; that as a part of his design he represented that he was about to purchase the real property described in the complaint and present it to her as a home for both; that said Mary Moore expressed a desire to participate in said purchase and to pay one-half the purchase price of said home, and while he pretended to protest against her paying any part of said purchase price with seeming reluctance and unwillingness he finally yielded to her desire in the matter and consented that she pay one-half of said purchase price; believing that he intended to and would pay the remaining one-half of said

The certificate of marriage attesting the solemnization of the marriage of said Jared H. Miller and Mary Moore on October 13, 1915, as authorized by the marriage license theretofore issued, is pleaded at large. A number of sections of the statutes of the state of Tennessee bearing upon the question of the legality of the decrees of divorce granted by the Tennessee courts to respondent from Edith Chesley Miller and Irene Ayers Miller, respectively, and affecting his right to remarry thereafter are incorporated in the complaint and answer, some of which will hereafter be considered.

The answer makes full and complete denials of each and every allegation of the complaint from which any adverse inference or conclusion may be drawn as to the legality of the divorce decree granted to respondent by the Tennessee court in the case of Jared H. Miller v. Edith Chesley Miller, and of all other allegations that tend to impair the validity of the marriages of Jared H. Miller and Mary Moore. The proceedings instituted in the superior court of the county of Alameda, whereby Irene Ayers Miller was granted a decree of divorce from respondent, are admitted to be true. Respondent alleges that he domiciled in the state of Tennessee on June 5, 1909, with the intention of making and did make said state his place of legal residence, and resided therein until about November 21, 1914. The history of the two marriages entered into by respondent and Mary Moore in Tennessee and the third at Fresno, California, is recited, and in this connection it is alleged that, relying upon the legality of said marriage ceremonies, respondent and said Mary Moore Miller lived together as husband and wife, beginning with the celebration of the first marriage, to wit, November 20, 1914, to the time of her death. The answer specifically denies that said Mary

The statutes of Tennessee defining the various causes that shall constitute grounds of divorce, among other things, provide:

“Wilful or malicious desertion or absence of either party without a reasonable cause for two whole years.” (Sec. 4201, subd. 4.)

“Refusal, on part of a wife, to remove with her husband to this state, without a reasonable cause, and wilfully absenting herself from him for two years.” (Sec. 4201, subd. 8.)

“A divorce may be granted for any of the aforesaid causes, though acts complained of were committed out of the state, or the petitioner resides out of the state at the time, no matter where the other party resides, if the peti

tioner has resided in this state two years next preceding the filing of the petition.” (Sec. 4203.)

The statutes contain a provision that when a marriage is absolutely annulled the parties shall severally be at liberty to marry again, except for existing causes not present in the instant case.

The court impliedly found, and upon the record it is inconceivable how it could have otherwise found, that Mary Moore Miller was at all times in full possession of all the facts and circumstances affecting the marital status of Jared H. Miller, and that she was an active, willing, and persistent ally, at all times co-operating with him, and that she largely directed the execution of devious plans whereby said Irene Ayers Miller was to be put aside by him in order to make room for herself in the marital life and affections of respondent. By no means was she mere clay in the potter’s hands; but it incontrovertibly appears that she was aggressively active in her determination to make Jared H. Miller her husband and displayed no small degree of initiative talent in the furtherance of her purpose and moved toward her designs with fixed determination. Her many letters and unbroken course of conduct, beginning shortly after she first met the respondent at the city of Los Angeles as his patient and continuing through the period of the pending divorce proceedings which ended with the entry of the final decree of divorce obtained by Irene Ayers Miller in the California court, furnish conclusive proof of her willing and active participation in very much that is chargeable to the respondent in the matter of the dissolution of the Irene Ayers Miller marriage. Mary Moore Miller was not an ordinary person. She was an unmarried woman sixty-two or sixty-three years of age at the time she met Dr. Miller in the spring of 1914 at his office at Los Angeles. Dr. Miller was then aged forty-three years. Mary Moore Miller was then a woman reasonably well preserved, possessing good features, well-mannered, and retaining a lively interest in current matters. Her home was at Marquette, Michigan, and it had been her habit to spend the winters at Los Angeles with companions whom she frequently brought with her from her Michigan home. She was mentally alert, cultured, and well informed as to public men and measures. Her young maidenhood

The following portions of two letters written by her on August 23, 1914, and November 3, 1914, express her interest m Dr. Miller’s children: “I just know I will enjoy

On September 23, 1914, she wrote to Dr. Miller as follows: “I do hope it [plan to intermarry] will work out all right for we do not want to live apart any longer than we have to.” On October 14, 1914, she wrote as follows: “I have done enough for the whole family [her collateral kindred] to have my way about this matter. The point is this, we want each other and that is all there is to it. . . . Now, my dear, we shall go ahead and do as we please—now we are going ahead regardless for I am under obligation to no one and there are many under obligations to me.” If Dr. Miller succeeded in getting his first Tennessee divorce decree from Irene she suggested to Mm that he telegraph her at once, “Patent granted.”

Her purpose to possess Dr. Miller as her husband is further disclosed by the following lines taken from a letter written by her to hini November 7, 1914: “My taste does not run to society—steam yachts—private ears and palaces —but a cozy home ruled by perfect love and confidence and peace is what I want and that is your idea of happiness we will have it some day.” She expressed considerable anxiety as to the finality of the divorce proceeding that would separate the doctor and Irene. She wrote: “Have everything exactly right, never mind the cost, the correct result is what we want.”

In a letter of September 1, 1914, prior to the commencement of any divorce proceeding and well knowing that Dr. Miller was living with Irene Ayers Miller as her husband, she wrote Dr. Miller instructions as to the kind and size of a wedding ring he was to purchase for her. The details of their mutual plans, studied and cunningly devised, by which Dr. Miller, who was known to Mary Moore to be a resident

On their first matrimonial venture, and even before the "ceremony was performed, Mary Moore Miller supplied Dr. Miller with expense money, and liberally gave him other sums of considerable importance to be used for his needs. Both entertained doubt as to the legality of their first marriage. Lawyers, so the testimony goes, were divided on the question. In due course of time Mary Moore Miller returned to her Marquette home and from there she continued to write Dr. Miller scores of letters, in which she discussed a variety of subjects, but each letter abounded in expressions of ardent affection for him,- and she repeatedly manifested impatience at the circumstances which kept them apart. Being in an uncertain state of mind as to the validity of the Tennessee decree purporting to divorce Dr. Miller and his wife Irene, both parties set about to promote the divorce of Dr. Miller and Irene. It appears that their matrimonial relations had not been altogether harmonious under normal conditions, and they became more disturbed after Mary Moore became the doctor’s patient. At any rate, Irene returned to her Berkeley home and in due time brought a divorce action in the superior court of the county of Alameda, which resulted in the entry of an interlocutory decree

Immediately following the marriage of 1915 they resumed matrimonial relations and proceeded from the altar directly to Marquette and Detroit, where they met the relatives and friends of Mary Moore Miller. She exhibited a sense of pride in the attainments of her husband, and represented to her relatives that he was a man of affairs and possessed good professional and business ability. She knew, however, that he was a man without means, as she had all the time voluntarily financed him. In order to give him the appearance of a man of affluence she placed sums of money to his credit. Appellant has argued through hundreds of pages of briefs that her exhibition of marital pride in speaking well of her husband and representing him as a man of means to her relatives is proof positive that she was wickedly deceived by him into such belief, and had she not been thus deceived she would not have consented to a marriage with him. Such a contention is completely and effectively answered by her correspondence with Dr. Miller. In order that he might not hesitate to make known his needs to her she assured him that she had more money than she ought to spend; more than she knew what to do with. Again she wrote: “All the afternoon was busy writing checks—the end of the month—you know that will soon be your job.” The evidence overwhelmingly defeats appellant’s contention. The evidence is also conclusive to the point that it was the agreement and understanding that Dr. Miller was to retire from the practice of medicine and devote himself to the care and management of Mrs. Miller’s large interests, and engage in such business affairs as might be agreeable to both. She transferred her bank accounts from Michigan to Los Angeles as expeditiously as her judgment dictated. She had much correspondence with her lawyer brother, who visited her for several weeks at her Los Angeles home in 1919, concerning her business projects, and was fully aware of his views with reference to her business concerns. She did not take him into her full confidence as to what money or property she intended to make Dr. Miller a joint sharer

In 1919 she took up with her brother the subject of making her will, and -wrote several letters telling him just how she wished him to draw the will. No unprejudiced mind can read those letters "without becoming convinced that decedent in her instructions was acting freely, voluntarily, and intelligently. The following is but a sample of the many expressions which are to be found in her letters. It deals directly with testamentary intention:

“Los Angeles, April 7th, 1919.

“Dear George:

“The revised copy of the will received and is exactly what I want and fully carries out my wishes. I see no reason why I should ever change it as it seems to me to be as just as possible all around. The way it was before it would have cut the Dr. off with $2400.00 a year, which I would not want. He is the one who is spending his life with me, has for several years and expect will for many more. Helps me in all the details of life, assists me in many ways. Should anything befall you I would have to depend on him much more. Companionship and service of this sort cannot be measured in money, but my first wish and care is for him naturally and I want him fully provided for while he lives.”

The will as finally executed carries on after her death many of the benevolences which she practiced in life, and some of those now opposing the probate of her will are named as beneficiaries therein so long as they shall live. We have no disposition to mitigate the wrong she wrought by counseling, aiding, assisting, and abetting the divorcement of Dr. Miller and his wife Irene. That, however, is the only shadow that darkens a life that abounded in benevolent and gracious offices. But her transgression, however grievous, did not, per se, work a forfeiture of her right to

Appellant seeks to bring to his support sections 158 and 2235 of the Civil Code, which provide that transaction^ between husband and wife during the existence of the marital state by which one of the spouses obtains any advantage from the other are presumed to be entered into without consideration and under .undue influence. That Mary Moore Miller had the opportunity of independent advice in all of her transactions with Dr. Miller is not a debatable question. Prom the first marriage ceremony to the second a period of one year elapsed, during which time she resided in the state of Michigan and Dr. Miller resided at the city of Los Angeles. All of this time she was in constant communication with her lawyer brother, personally advising with him on any matter she chose to submit to his judgment. She was given to travel and visited a number of the prosperous cities of the middle west during this period of separation. It also appears that she actually came into personal contact with lawyers. In fact, she paid the fees of one, if not both, in the Irene Ayers Miller divorce action. With her experience in business matters generally is it not at least likely that having employed lawyers for another she was well advised of her right to employ one for herself ? The court found, and the evidence abundantly supports the finding, that Mary Moore Miller was at all times fully advised as to Dr. Miller’s matrimonial status and prior to the time of the purchase of the real property involved in this proceeding she knew that Dr. Miller was without means to purchase said property, and she at all times fully intencLed that the whole purchase price should be paid from funds to be supplied by her to him. That she would have procured the deed to be made as it appears of record, even though she doubted the consummation of a technical legal marriage, there can scarcely exist a doubt in' the light of her attitude to Dr. Miller.

In the three cases before us the Tennessee decree of 1909, purporting to divorce Dr. Miller and Edith Chesley Miller, is vigorously attacked by the representative of the collateral heirs on the theory that if that decree is adjudged to be invalid for want of jurisdiction of the court to render it, then it must follow that Dr. Miller and Edith Chesley

The petition filed by J. H. Miller against Edith Chesley Miller in the Shelby County circuit court on September 4, 1909, alleged the marriage and the birth of a son, who was in legal custody of plaintiff, Dr. J. H. Miller. Petitioner alleged that he was a resident of Tennessee and that defendant was a nonresident of that state. He alleged as grounds of divorce that his wife had wilfully and maliciously deserted him and declared that owing to incompatibility of temperament they could not live together. He next alleged that his wife would not remove into the state of Tennessee with him, and that he held “a letter showing notwithstanding his consideration and efforts she adheres to her position and declares a separation is the proper course.” The following waiver of process, which was mailed to the clerk of the court by his wife, was in the handwriting of Dr. Miller and was executed by her in Massachusetts and was filed as a record in the case:

“I, E. C. Miller, hereby waive notice, copy, pleading, term and agree that the application of J. H. Miller for divorce from me shall be set and tried instanter.

“Witness my hand the 10th day of September, 1909.

“E. C. Milleb.”

The pro confesso which Edith Chesley Miller executed and caused to be filed as a record in the case constituted an appearance on her part and she has never since questioned its true intent or binding effect. The cause regularly came before the circuit court of Shelby County, state of Tennessee, for hearing, and that court made and entered its decree on September 15, 1909, as follows:

“This cause came on this day to be heard on the bill of complaint for divorce, the pro confesso here and now taken and entered against the defendant, and the oral testimony of witnesses examined in open court, from all of which it satisfactorily appeared to the court that complainant is entitled to the relief sought on the ground of desertion without provocation on the part of the complainant, and her refusal to move into this state with him all resulting from incompatibility of temperament;

“It is therefore ordered, adjudged and decreed by the court that the bonds of matrimony heretofore subsisting between the complainant, J. H. Miller, and the defendant, E. C. Miller, be and the same are hereby absolutely dissolved and forever held for naught.

“It is further ordered that the defendant pay the costs herein accrued, for which execution may issue.”

Surely no fraud was committed against Edith Chesley Miller on any of the grounds which constitute the basis of the cases cited by appellant, nor was the service substituted, and she makes no claim that there was fraud or insufficient service. Her ultimate object in filing her bill of divorce against Dr. Miller in Massachusetts upon the eve of his departure for Tennessee was made more certain of attainment by the divorce action taken by Dr. Miller several months thereafter. Neither do the facts altogether harmonize with the theory of collusion, as there would have been no occasion for a duplication of divorce proceedings if there had been a collusive agreement between the parties.

In considering what effect should be given to the foregoing decree in the light of the full faith and credit clause of the constitution of the United States, it may be proper at this time to observe that neither one of the parties to the 1909 divorce proceedings, nor the issue of the marriage sought to be dissolved, a son, are attacking said decree, but the attack is made by the collateral kindred of the wife of the last marriage, who, according to the finding of the trial court, was fully informed as to the 1909 decree. Edith Chesley Miller and Dr. Miller each having remarried another person, respectively, are estopped from denying the validity of said decree. Even if the Tennessee decree showed upon its face want of jurisdiction of the court to make said decree and was consequently void on a

In Hamblin v. Superior Court, 195 Cal. 364 [ 43 A. L. R. 1509 , 233 Pac. 337 ], this court further said: “The provision of section 128 of the Civil Code, forbidding the granting of a divorce unless the plaintiff has been a resident of the state and of the county for the time specified, is of a similar character. This requirement has sometimes been spoken of as ‘ jurisdictional’ (Flynn v. Flynn, 171 Cal. 746 [ 154 Pac. 837 ]; Gould v. Gould, 188 Cal. 505 [ 205 Pac. 1072 ]). But it has never been so decided, so far as we are advised, in any ease wherein that question was actually involved. In the case in which this question has been actually involved and decided it has been held that this requirement is not jurisdictional, and that the failure to comply with it is nothing more than error in the exercise of jurisdiction (Estate of McNeil, 155 Cal. 333 , 339 [ 100 Pac. 1086 ]; Dahne v. Superior Court, 31 Cal. App. 664 [ 161 Pac. 280 ]; Bullard v. Bullard, 189 Cal. 502 , 506 [ 209 Pac. 361 ]). The same reasoning applies with equal force to the provisions of section 130 of the Civil Code, and it follows by parity of reasoning that these requirements are not jurisdictional and that a failure to comply with them results

Counsel has cited a long list of cases, of which Andrews v. Andrews, 188 U. S. 14 [ 47 L. Ed. 366 , 23 Sup. Ct. Rep. 237 ], Bell v. Bell, 181 U. S. 175 [ 45 L. Ed. 804 , 21 Sup. Ct. Rep. 551 ], Streitwolf v. Streitwolf, 181 U. S. 179 [ 45 L. Ed. 807 , 21 Sup. Ct. Rep. 553 ], and Haddock v. Haddock, 201 U. S. 562 [5 Ann. Cas. 1, 50 L. Ed. 867 , 26 Sup. Ct. Rep. 525 ], are typical, which are declaratory of the rule announced in many state courts. It is well expressed by former Chief Justice Shaw in Bruguiere v. Bruguiere, supra, as follows: “It is a well-established proposition that where one spouse goes to a state other than that of the matrimonial domicile and there obtains a divorce under a residence simulated for that purpose and not in good faith, the judgment is not binding upon the courts of other states of the Union, and upon proof of the fraudulent residence and of the fact that the divorce is obtained by substituted service only, it may be held void in any other state than that in which it was rendered. (Estate of James, 99 Cal. 374 , 377 [ 37 Am. St. Rep. 60 , 33 Pac. 1122 ].) Whether it would be held valid in the state in which it was rendered is a question depending upon the policy and law of that state.”

The rule, of course, rests upon consideration of public policy, and was adopted by courts in order to preserve the rights of wives and the issue of marriages against faithless husbands who deserted them without cause and fled to other states and gained a residence for the purpose of obtaining a divorce from the abandoned wife. There is not one of the controlling facts upon which the decisions in the cited cases are placed that is to be found in the instant case. In each of said cases the removal of the husband from the matrimonial domicile was found to be with the intent of simulating a residence for the purpose of obtaining a divorce from the wife and the service of process was constructive. The actions to annul the decree in those cases were brought by the injured spouse. The fraudulent purpose that moved the husband to leave the matrimonial domicile and gain a residence in another state unquestionably forms the basis of all of those eases. The trial court found against

But if it be conceded that the 1909 decree is assailable by appellant and is void for the reasons urged against it, this circumstance would not establish the nonmarriage status of Dr. Miller and Mary Moore Miller, which it is incumbent upon appellant to do in order to avail himself of the force of the argument that Mary Moore Miller was deceived and misled by Dr. Miller’s machinations into the belief that she was his legal wife. The last marriage ceremonial to which Dr. Miller and Mary Moore Miller were parties, performed at Fresno, California, May 11, 1918, estops appellant from questioning the matrimonial status of the parties to said marriage. The mere proof of a prior marriage and the continued life of both spouses is not sufficient to make a case against a second ceremonial marriage. There must be a further showing that the first marriage had not been set aside by judicial decree. There is a very strong presumption in favor of the legality of a marriage regularly solemnized. The marriage ceremony of May 11, 1918, was solemnized under all the forms of law after the entry by Irene Ayers Miller of the final decree divorcing her from Dr. Miller. The deposition of Edith Chesley Berriman (formerly Miller) was taken and not one word of testimony was given by her as to whether she had obtained a decree of divorce from Dr. Miller. Neither was it made to affirmatively appear that he had not obtained a valid decree against her. This being so, Dr. Miller and Mary Moore Miller were husband and wife under the laws of this state before the will was executed and continued to be such until her death, whatever may have been their marriage status prior thereto. (Estate of Hughson, 173 Cal. 448 [ 160 Pac. 548 ]; Marsh v. Marsh, 79 Cal. App. 560 [ 250 Pac. 411 ].) Aside from this, the California decree of divorce in which Irene was plaintiff and Dr. Miller was defendant became final October 5, 1916. It has not been attacked in any direct proceeding and only collaterally, if at all, in this proceeding. In the matter of the Estate of Lee, 200 Cal. 310 [ 253 Pac. 145 ], this court said:

“A divorce proceeding in so far as it relates to the marriage relation of the parties to the action and the

The policy of this state on this subject is made clear by the foregoing pronouncement. The question of marriage and divorce is one of public policy committed largely to the sound discretion of the several states, as is well demonstrated by the divergent views of the several courts of the Union in dealing with the subject. The decisions are not uniform, but all extend the judicial arm to protect the matrimonial status from the fraudulent designs of either of the spouses. Prom a consideration of the marriage status of the persons that may be seriously affected by this proceeding, the policy of the law would require the sustaining of the judgment of the trial court if it can reasonably be done. It is not necessary for us to rely upon such an exigency in this case, as the evidence and the law unquestionably impel an affirmance of the judgment.

Appellant assigns as error the refusal of the court to receive in evidence a letter written by Dr. Miller to his attorney, dated October 19, 1915, which purports to have been written with his wife’s consent and in substance was a request made to his attorney, to draw up a document predetermining which one of the two died first in the event that both were killed in an accident. The letter was written in anticipation of an automobile trip from Marquette to Washington, D. C., New Orleans, and thence to Los Angeles. In the letter he said: “Should anything unforeseen happen to us, both want you to understand and get my share for my kiddies, for whom I am doing many

An examination of an excessively large and overfull record convinces us that the judgment of the trial court must be sustained. The judgment appealed from is, therefore, affirmed.

Waste, C. J., Richards, J., Shenk, J., Curtis, J., Preston, J., and Langdon, J., concurred.