109 Wash. 597 | Wash. | 1920
On March 29,1917, Alfred Blodgett died at Tacoma, Washington. He left no will, and on April 17, 1917, the appellant, claiming to be the widow of the deceased, was appointed administratrix of his estate. On September 10, 1917, the superior court for Pierce county, upon petition of respondent Mary Blodgett, mother of deceased, and after hearing upon the petition, entered a memorandum decision finding that appellant was never married to Alfred Blodgett; that, at the time appellant claims they were married, Alfred Blodgett was the legal husband of one Elsie Conahan; that there was no evidence that Alfred Blodgett and Elsie Conahan were ever divorced; that appellant knew that Alfred Blodgett could not legally marry; and that appellant had attempted to unlawfully dispose of the chief asset of the estate, and that it became the duty of the court to remove appellant as administratrix and appoint some person in her place; and the court thereupon appointed J. H. Gordon administrator de bonis non.
On March 14,1918, appellant filed a petition for new hearing. The court, on'April 17, 1918, sustained demurrers to this petition. On October 14, 1918, appellant filed an amended petition for new hearing. On October 15, 1918, the court sustained demurrers of 'Mary Blodgett and J. H. Gordon, administrator de bonis non, to this amended petition, and on January 25,1919, entered an order dismissing the amended petition for a new hearing.
Passing the questions raised by respondents as to the right of appellant to an appeal, let us inquire into the allegations of the petition and amended petition for a new hearing. It appears from these that, on April 5, 1895, appellant and Alfred Blodgett went through the marriage ceremony as contracting parties, at Vancouver, B. C. At that time Elsie Conahan was
From all this, appellant seeks a. rehearing on the theory, as we interpret her contentions, that, granting her marriage in British Columbia was void, the impediment to Alfred Blodgett entering into the marriage relation with her was removed in 1902 when Elsie Conahan was divorced from him; and when appellant and Alfred Blodgett, after 1902, lived in the state of New York as husband and wife, their relation passed from a meretricious one to a meritorious one, in that they became common law husband and wife, and having become husband and wife by common law in the state of New York, upon their return to this state, they continued in that lawful relation.
There is no allegation that, subsequent to 1902, when the impediment to the marriage of Alfred Blodgett to appellant was removed, a new contract of marriage was entered into by them. On April 5, 1895, Alfred Blodgett was totally incapable of entering the marriage relation with appellant and their relation was merely meretricious and unlawful.
The mere fact that the parties at one time, when the impediment to their marriage may have been removed, lived in a state which recognizes common law' marriages, does not change their relation. They still looked to the ineffectual ceremony at Vancouver as the beginning of their relation, and there is nothing in appellant’s amended petition to show that they considered any other or a new beginning. Besides, their residence in New York was not alleged to be a permanent one, but the longest period of such residence was four and one-half months. In this respect the case is similar to the case of Norcross v. Norcross, 155 Mass. 425, 29 N. E. 506, wherein it was said:
“We are slow to believe that acts which in Massachusetts were illicit will be deemed matrimonial merely by being continued without any new sanction by residents of Massachusetts ■ while transiently across the state line. ’ ’
The case before us is stronger, in that here the record shows the parties knew their relation was illicit and believed it was incapable of being changed into a lawful one.
The order of the superior court dismissing the amended petition is affirmed.
Mitchell, Parker, Mackintosh, and Main, JJ., concur.