In Re Vetas' Estate

170 P.2d 183, 110 Utah 187, 1946 Utah LEXIS 114

• Court: Utah Supreme Court
• Decided: June 13, 1946
• Docket: No. 6818.
• Status: Published

Opinions

McDONOUGH, Justice.

The district court held that appellant was not the wife of decedent George Vetas, denied her petition for letters of administration, and appointed the Commercial Security Bank of Ogden to act as administrator, and she appeals. Only questions of law are presented for our determination.

Appellant asserts that the court erred in finding that she was not the lawful wife of decedent.

Section 102-4-1, U. C. A. 1943, provides that letters of administration shall be issued upon application, according to the following order of preference, to: (1) Surviving husband or wife; (2) children; (3) father or mother; (4) brothers or sisters; (5) grandchildren; and (6) next of kin. Section 102‘-4-3 provides that if persons entitled to letters of administration fail to appear within 3 months, letters of administration must be granted to any interested applicant. Appellant, claiming to be the surviving wife of decedent, filed her petition within the 3 months’ period following death of decedent, so the right of appellant to have letters of administration issued to her in the event of a contest, would necessarily depend upon whether she was in fact a member of the preferred class.

A brother of decedent challenged the competency of appellant to apply for appointment as administratrix during said period by filing an answer to her petition in which answer he denied that she was ever married to the decedent.

Respondent points out that under Section 102-4-2 the court is authorized to appoint any competent person to serve as administrator if

“a dispute arises as to relationship between applicants, or if there is any other good and sufficient reason.”

It contends that under this section, appointment of the bank to act as the administrator, must be upheld. However, it is clear from the findings of fact and conclusions of lav/ that the lower court did not act alone under the quoted portion of Sec. 104-4-2, but proceeded to determine whether appellant was legally the wife of decedent. The answer to the petition and the reply to such answer, raised an issue as to whether appellant was married to decedent. The issue of marriage was therefore a proper one to be determined by the court prior to the appointment of an administrator.

By reply of appellant she alleged that she became the wife of George Vetas on February 14, 1932, by a common-law marriage contracted in the state of Idaho. She made no claim that either she or said George Vetas ever had a domicle in Idaho. In fact, her testimony clearly shows that both were residents of Utah during the entire time in question, and that the parties went to Idaho for the sole purpose of marriage and with the intention of returning to this state almost immediately thereafter. The facts as set forth in the findings, in substance, are as follows:

For some time prior to February 14, 1932, appellant and decedent kept company with each other. They were both residents of Ogden, Utah. On February 13, 1932, they decided to go to Salmon City, Idaho, where appellant’s sister resided, to be married. On the morning of the 14th they drove to Salmon City. They there went to the courthouse to find a justice of the peace and to procure a marriage license. As it was Sunday, they were unable to locate either a justice of the peace or the marriage license clerk at the courthouse. George Vetas then said to appellant,

“What’s the use. We’re married anyway.” Appellant replied, “That’s okay by me.”

They then went to the home of her sister and represented themselves as being married, and received congratulations from her relatives and friends. They occupied the same bed that night at the home of appellant’s sister and returned to Ogden the following day. En route to Ogden they stopped for a short time at Pocatello, Idaho, where they announced to a friend residing there that they were married and received the friend’s congratulations. Thereafter, they held themselves out as husband and wife, and continued to live together at Ogden where decedent was engaged in business, until his death on June 7, 1944.

We have heretofore held that a common-law marriage cannot be consummated in this state; that marriage in this state must be solemnized as required by our statutes. Schurler v. Ind. Comm., 86 Utah 284, 43 P. 2d 696, 100 A. L. R. 1085; and Sanders v. Ind. Comm., 64 Utah 372, 230 P. 1026. The lower court concluded, as indicated hereinabove, that appellant had not entered into a valid marriage with decedent. In a memo opinion filed by such court this conclusion was reached by the court assuming that though the evidence was sufficient to support a finding that as between residents of Idaho a “common law” marriage would have been contracted; nevertheless by virtue of Sec. 40-1-2, U. C. A. 1943, such purported marriage was void.

Said section reads:

“Marriages Prohibited and Void.

“The following marriages are prohibited and declared void:

“ (1) With an idiot or lunatic, with a person afflicted with syphilis or gonorrhea that is communicable or that may become communicable, or with a person subject to chronic epileptic fits; provided, that the last disqualification shall not apply to any male or female who has been sterilized.

“ (2) When there is a husband or wife living from whom the person marrying has not been divorced.

“(3) When not solemnized by an authorized person, except as provided in Section 40-1-5.

“ (4) When at the time of marriage the male is under sixteen or the female in under fourteen years of age.

“(5) Between a negro and a white person.

“(6) Between a Mongolian, member of the malay race or a mulatto, quadroon, or octoroon, and white person.

“ (7) Between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree.”

Section 40-1-5 provides:

“Solemnization-Before Unauthorized Person — Validity.

“No marriage solemnized before any person professing to have authority therefor shall he invalid for want of such authority, if consummated in the belief of the parties or either of them that he had such authority and that they have been lawfully married.”

The trial court in its opinion refers to Sec. 132 of the Restatement of the Law: Conflict of Laws, page 197, reading:

“Marriage Declared Void by Law of Domicil.

“A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:

“(a) polygamous marriage,

“(b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil,

“(c) marriage between persons of different races where such marriages are at the domicil regarded as odious,

“(d) marriage of a domicliary which a statute at the domicil makes void even though celebrated in another state.”

The court points to paragraph (d) of the rules quoted from the Restatement; and construing paragraph (3) of Sec. 40-1-2 as declaring void a marriage not “solemnized by an authorized person,” holds that a common law marriage entered into in a state which recognizes such marriage will not be recognized in Utah as to persons here domiciled at the time such purported marriage is contracted in such sister state.

We address ourselves to this proposition. The marriages covered by paragraphs (a) and (b) of Sec. 132 of the Re statement were invalid at common law and would be so declared regardless of statute. 1 Schuler, Marriage, Divorce, etc., Sec. 16, p. 21 and Sec. 21, p. 31; 35 Am. Juris., Marriage, Secs. 140, 141 and 148; 1 Bishop, Marriage, Divorce and Separation, Chaps. XXIV and XXV; 2 Beale, Conflict of Laws, Sec. 132.1 and Sec. 132.2. As to inter-racial marriages, the question would be decided upon determination of whether such unions are regarded as odious at the domicile. Paragraph (d) does not declare void a marriage of a domiciliary contracted in a foreign state in compliance with its laws by mere force of a statute which would make the union invalid if entered into in the domiciliary state. Rather, it states that such marriage will be invalid everywhere if the statute of the domicile makes it void “even though celebrated in another state.” (Emphasis supplied.) If such statute expressly or by necessary implication declares a foreign marriage, entered into by one domiciled in such state, void, then it will be held void wherever it is called into question. But, if not expressly so declared, or if the necessary implication of a statute is not that its prohibitions extend to marriages entered into elsewhere than at the domicile, it will not generally be construed to have application to such marriages. State v. Shattuck, 69 Vt. 403, 38 A. 81, 40 L. R. A. 428, 60 Am. St. Rep. 936. And see: Vol. 1, Schuler, Marriage, Divorce, Separation and Domestic Relations, p. 56, Sec. 33; 1 Bishop, Marriage, Divorce and Separation, Sec. 843, et seq. However, as to legal impediment to intér-marriage, see Greenhow v. James’ Ex’r, 80 Va. 636, 56 Am. Rep. 603.

In Sanders v. Ind. Comm., supra, par. (7) of Sec. 40-1-2, C. L. U. 1943 (and its provisions insofar as here involved were in substance the same at the date of the decision), was held applicable to a marriage solemnized in Wyoming in conformity with the laws of that state. But such was held to be the necessary intendment of such paragraph read in light of Sec. 3001, Sec. 3002 and Sec. 3003, C. L. U. 1917. The first two of such sections, as construed, provide for a mere interlocutory decree of divorce which was held not to dissolve the marriage relation. The third made it unlawful for either party to marry any person other than the other party to the divorce proceeding during the six month period allowed for appeal from the “final decree,” and, if an appeal be taken, until affirmance of the decree. It further provided that “any marriage contracted in violation” of the provisions of the section “shall be null and void.”

In light of the foregoing we return to a consideration of Sec. 40-1-2(3) U. C. A. 1943, declaring a marriage void when not solemnized by an authorized person. We consider it in connection with Sec. 40-1-4, U. C. A. 1943. (Both sections have been on the statute books of this state since before statehood. See C. L. U. 1888, Sec. 2584, and R. S. U. 1898, Sec. 1186.) Sec. 40-1-4 declares:

“Marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here.”

The problem narrows to this: Do these two sections evidence a legislative intent to recognize a marriage in another state between parties domiciled in Utah only if it is formally entered into — “solemenized”—before a person authorized by the laws of such state to perform a marriage ceremony; or is Sec. 40-1-4, supra to be construed as voicing the general rule that a marriage lawful where celebrated or contracted is lawful everywhere ? What we may here say in resolving the question we confine to marriages of persons domiciled in Utah whose marriage in another state or country, while here domiciled, is brought into question; and shall assume, for the purposes of this decision, that in the enactments now under examination it was not the purpose to legislate with respect to the marriage in another jurisdiction of persons there domiciled.

The purpose of enactments requiring the solemnization of marriage before an authorized person, together with those dealing with the prior procurement of a license, is doubtless to protect the parties to the marriage contract in the rights flowing therefrom, and likewise to protect their offspring. A solemn record of the contract is made to which recourse may be had when rights or obligations of the husband or wife arising from the marriage are in issue. So, too, are the interests of third parties in dealing with either of the contracting parties, subsequent to marriage, thus protected. Other advantages of a formal recorded ceremony might be cited, but those just adverted to will suffice in considering the intendment of the provisions in question.

To effect such objects a marriage must, in this state, be “solemnized before an authorized person” to be valid. But should persons domiciled in this state go to a neighboring state and attempt to contract a common law marriage, the protection of the parties, their offspring and the public, which the statute was designed to effect, would not result should such attempted marriage be recognized here. With this fact in mind, we consider Sec. 40-1-4.

Insofar as neighboring states are concerned the wording of this section is perculiar to Utah. Thus the California Code provides:

“All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted are valid in this state.” Civil Code of California, § 63' (1941 Ed.)

This section was enacted in 1872. Identical provisions are found in Idaho (Idaho Code Anno. 1932, § 31-209) and Montana (Revised Codes of Montana, § 5707), while Colorado has an identical enactment with a proviso relative to bigamy and polygamy (Colorado Statutes Anno. 1935, Vol. 4, c. 107, § 4). By contrast with neighboring examples the section of our code specifies that

“marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here.” (Emphasis added.)

We think the use of the italicized word was made advisedly and that this section, construed with paragraph (3). of Sec. 40-1-2, supra, evidences a legislative pronouncement that as to domiciliaries of Utah a common law mar riage contracted in another jurisdiction would not be here recognized. To be valid as between domiciliaries of this state a marriage must be “solemnized” either in accordance with the laws of this state or those of another jurisdiction. Webster’s New International Dictionary, Second Edition, defines “solemnize” thus:

“To perform with pomp and ceremony or according to legal forms; specif.; to unite a couple in marriage with religious ceremony; $ ‡ ft

That the word was used in this sense is abundantly clear from its employment in the two provisions under examination, as well as elsewhere in the chapter of which they are a part. Taking into consideration the purposes of the statute requiring solemnization within the state, the meaning of the words employed, the departure from neighboring examples in the employment of the word “solemnized” in Sec. 40-1-4, supra, the holding is compelled that persons domiciled in Utah may not go into another state, there contract a “common law marriage,” and, returning here, have such marriage recognized as valid.

It follows that the finding of the trial court to the effect that appellant was not the wife of George Vetas during his life-time, and hence not his surviving widow, must be sustained. The judgment of the district court is affirmed. Costs to respondent.