This is а suit for a declaratory judgment. The trial court entered a decree for the plaintiff from which the defendant appeals.
The defendаnt Roberta Kroeger, domiciled in the state of Oregon, prior to December 14, 1954, was married to one Allen Hasel. On that date, she obtained a decree of divorce from him. On April 23, 1955, less than six months from the entry of the decree, she went through a marriage ceremony in the state of Nevаda with Paul Kroeger, also domiciled in the state of Oregon. Immediately following the marriage ceremony, the defendant and Paul Kroeger returned to the state of Oregon where they resided. Paul Kroeger died intestate later that same year, leaving an estate consisting of both rеal and personal property.
The question presented on this appeal is whether or not at the time of Paul Kroeger’s death the dеfendant was his lawful widow and thus as his heir at law entitled to the estate of the deceased.
ORS 107.110 provides:
“(1) A decree declaring a marriage void or dissolvеd at the suit or claim of either party terminates the marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person until the expiration of six months from the date of the decree or, if an appeal is taken, until thе suit is determined on appeal, whichever is later.
*105 “(2) If either party does so contract, he is liable therefor as if the decree had nоt been given.”
A similar situation to this existed in the case of
In Re Estate of Ott,
The defendant has asked us to reconsider and reverse the holdings of our former opinions. We have re-examined our former holdings, but we decline to depart therefrom. The language of the statute using the words “neither party shall be capable of contracting marriage” clearly sets forth, as the public policy of this state, that persons under the prohibition of the statute are incapable of entering into the contract of marriage, and, therefore, being unable to contract the marriage, wherever performed, it is void ab initio. If it is thought the public policy should be more lenient to those who wish to remary in haste, it is for the legislature to decide, not the courts.
Subsequent to the presentation of this matter in the trial court and, of course, after the death of Paul Kroeger, the 1959 legislature amended ORS 107.150 to read as follows:
“(5) Any marriage in all оther respects legal and regular, made prior to January 1, 1959, and before the expiration of six months from the date of a decree declaring a previous marriage of one or both of the contracting parties void or dissolved, hereby is declared valid; and any child conceived or born of such marriage shall be deemed legitimate.” Oregon Laws 1959, ch 228(5), p. 315.
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Under the law as it was in 1955, Roberta Kroeger would have takеn nothing. Paul Kroeger’s entire estate would have passed to his brothers and sisters as his heirs at law. If this interest was only an expectancy which did not vеst on Paul Kroeger’s death, then that expectancy might be divested by later legislative fiat. On the other hand, if the interest was a vested propеrty interest, it is beyond the power of the legislature to divest the heirs in part or in whole by substituting others as heirs.
Horton v. Carter,
253 Ala 325, 45 So2d 10;
Estate of Giordano,
85 Cal App2d 588,
Since this estate includes both real and personal property, the interest of the heirs in both must be considered. ORS 111.020 provides that “When any person dies seised of any real property, * * * such real property shall descend subject to his debts, еxpenses of administration and to being sold for the best interest of the estate or of the heirs, devisees or legatees or for the purposes of distribution, as follows * * Mr. Justice Rand had occasion to construe this section in
Leet v. Barr, et al.,
“Section 10125, Or. L., determines the persons to whom real property in this state shall descend. The word ‘descend’ has a well-defined legal meaning, and was used in this statute in that sense. As used in this statute it means the vesting of an estate in real property in the heir by operation of law immediately upon the death of the ancestor.”
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We came to a similar conclusion in
De Bow v. Wollenberg,
“The title to all realty, upon the death of its owner, passes directly to the heirs of the decedent as tenants in common, subject only to rights of the executor or administrator to possession for payment of debts.”
Other cases holding that fee title passes to the heirs immediately upon death are
In Re McLeod’s Estate,
These statements demonstrate that ORS 111.020 does not change the common-law rule that the title to realty vests in the heirs the moment the decedent expires. Therefore, the brothers and sisters of Paul Kroeger took a vested interest in his realty at the time he died. The interest could not be divested by statutе, so the defendant has no interest in the realty.
As to the personal property, the result is the same. For, while under the common law the legal title to the personalty of a decedent vested in his administrator at the time of his appointment, (II Woerner, The American Law of Administration, § 185 (3rd ed 1923); ORS 111.030;
McMahon v. Harney County Nat. Bank,
In Re McLeod’s Estate,
“ ‘It is a well established rule of law, that the right to a distributive share of personal estate, under the statute of distributions, is a vested interest, vesting, in point of right, at the time of the decease of the intestate, although the persons to take, and the amount to be received, must be ascertained and determined by a decree of the probate court; which, from various causеs affecting the settlement of the estate, may not be made till long afterwards.’ ”
We also said (p. 696):
“ * * * a right does vest at the time of the death £to demand and recеive at some time in the future whatever may remain after paying the debts and expenses.’ ”
The proposition that those entitled to distribution take a vested interest in the estate was accepted in the following cases:
State of Oregon v. Black,
There is another reason why the defendant cannot prеvail. Paul Kroeger having died prior to the *109 enactment of the curative statute, there was no putative marriage relation then existing upon which the statute could act.
The judgment of the trial court is affirmed.
Neither party shall recover costs.