### No. 12856 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

IN

### THE MATTER OF THE ESTATE OF 

### DAUENHAUER

## ,ANTON 

### DAUENHAUER etal., Deceased. 

### KAREN MILLER and JERRY 

### DAUENHAUER, Plaintiffs and Respondents,

DOROTHY 

### DAUENHAUER

## ,CHERALEEJOHNSON, CHRISTOPHER DAUENHAUER, DENISE MAZZUCCA, ROMONA 

### PLANT, and ALLEN 

### KELLER, Defendants and Appellants,

Appeal from: District Court 

### of 

## theFourth Judicial District, Honorable 

### Jack L. 

### Green, Judge presiding. Counsel of Record: For Appellants

### : M,Gene McLatchy argued, Missoula, Montana 

### H, J. 

### Pinsoneault, Missoula, Montana Julie

### A. Herak, Seattle,Washington For Respondents: Christian, McCurdy, Ingraham and Wold, Polson,

Montana Douglas J. 

### Wold argued, Polson, Montana

Submitted: April 10, 1975 Decided: 

### MAY

# Z 

# 1m

Filed: 

## MAY861 

# 'ig?Mr. Chief JusticeJames T. Harrison delivered the Opinion of theCourt. This 

### is an appeal from a judgment of thedistrictcourt, Lake County, which decreed thatthe only heirsof Anton Dauenhauer

areDorothy Dauenhauer, spouse, Karlene Miller, daughter, and Jerry Dauenhauer, son. Anton Dauenhauer, alsoknown asTony Dauenhauer, died intestate on December 4, 1971. He was a resident of Montana and leftan estate of real and personal property situated inMontana. The surviving spouse, Dorothy Dauenhauer, was appointed administratrix. In her Petition for Letters of Administration, she advised theprobate court that the heirs consisted of herself, Karlene Miller and JerryDauenhauer, decedent's children by a previous marriage which terminated indivorce in 1944. Subsequently, the administratrixadvised the court there were fiveadditional children entitled to share inthe estate, namely Ramona Plant, Allen Keller, Christopher Thorngren, Cheralee Johnson and Denise Mazzucca. Thereafter, plaintiffs filed a complaint to determine heirship under section 91-3801, R.C.M. 1947. During pretrial proceedings, a defaultjudgment was entered against Ramona Plant and Allen Keller and a directed verdict was entered infavor of Dorothy Dauenhauer, Karlene Miller and JerryDauenhauer. Attrial, defendantsChristopher Thorngren, Cheralee Johnson and Denise Mazzucca, sought toestablishtheirheirship. Proof was presented by which they attempted toestablishthat the deceased lived with theirmother, Mildred Thorngren, then known

as Mildred Dauenhauer, asman and wife inCalifornia from 1947 to 1951and that the deceased was their father. Decedent ceased livingwith Mildred Thorngren in 1951, and never lived with her or defendants again. In its findings of fact, conclusions of law and judgment, the districtcourt concluded the defendants arenot heirsof the

### decedent,Anton Dauenhauer,and that defendants "failed to show that (1) they, or any of them, are legitimate children of the decedent,or (2) 

### that the decedent acknowledged,in a writing signed by the decedent in the presence of a competent witness, that said Defendants,or any of them, were illegitimate children of said decedent,or (3) 

### any other facts sufficient to establish and perfect a claim of heirship from this decedent.'I 

### On appeal these issues are presented for review:

(1) Whether the local law of Montana or that of California is to be applied to determine defendants' legitimacy? (2) 

### If the law of California is to be applied to the legitimacy issue,whether defendants are legitimate or have been legitimated pursuant to that law? (3) 

### If defendants are illegitimate,whether the decedent, during his lifetime, complied with the requirements of section 91-404,R.C.M. 1947? First, we note it has not yet been determined that defendants are, in fact, the children of the decedent. Although the record would support such a finding,nothing we say herein should be construed as to require such a finding. That is a matter to be determined by the district court on remand. For purposes of succession, the law of Montana distinguishes between legitimate and illegitimate children of a decedent. Section 91-404,R.C.M. 1947. Our initial inquiry must be to determine whether the law of Montana or California is to 

### be applied in the determination of whether defendants are the legitimate or illegitimate children of the decedent. Defendantswere born in California and are, to this day, California domiciliaries. The relationship between the decedent and defendants' mother occurred solely in California. Other than this lawsuit,defendants have had no contact with Montana. Certainly it cannot be intimated that the mere fact that decedent later traveled to Montana and

### died here, in and of itself, renders defendants legitimate. We hold the local law of California governs the issue of defendants' legitimacy. Restatement, Conflict of Laws, SS 

### 137-141; 1 Restatement of Conflict of Laws 2d, S 

### 6; 2 Restatement of Conflict of Laws 2d, SS 

### 287, 288. Defendants contend Montana decisions in In reWray's Estate, 93 Mont. 525, 540, 19 P.2d 1051; and In re Wehr's Estate, 96 Mont. 245, 253, 29 P.2d 836,require that we apply Montana law to the legitimacy issue. We disagree and find these two decisions to be consistent with our holding today. InWray's Estate, the child was born illegitimate in Nebraska. The father later moved to Wyoming and the mother and father intermarried there. The father subsequently died domiciled in Montana. On the subject of the legitimation of the child, this Court looked to Wyoming law, stating:

" 

## * 

## * * upon the marriage of the father and mother, the law of the domicile of the father is controlling.I' 

### This Court applied the predecessor of section 61-123,R.C.M. 1947, 

### "A child born before wedlock becomes legitimate by the subsequent marriage of its parents" solely because there was an absence of proof as to the Wyoming law and it was presumed to be the same

as Montana's. Section 61-123,R.C.M. 1947,being a statute of legitimation, the Court properly looked to the law of the place where the legitimating act occurred, In Wehr's Estate, the illegitimate child of the decedent

was born and domiciled in Germany. Before moving to Montana, in

a writing executed in Germany, the decedent acknowledged the illegitimate child as his own. This Court held the acknowledgment sufficient under the predecessor of section 91-404,R.C.M. 1947, to entitle the child to share in the decedent's estate and nominate an administrator. The portion of section 91-404 pertaining

### to acknowledgments being a statute of succession, the Court properly looked to local Montana law. While this Court stated there that "the question of status for the purpose of inheritance depends upon the laws of the domicile of the intestate

as to property there situated" that statementmust be viewed as mere dictum, being broader than the issue at hand. Here, it is apparent from the record that the district court never considered the issue of whether the defendants could be either legitimate or legitimated under California law, despite the failure of decedent and their mother to enter into any formalmarriage ceremony. The district court, and the attorneys too, for that matter, apparently believed that such failure rendered defendants,per se, illegitimate. We find it necessary to remand this cause to the district court for a determination of whether defendants are legitimate or have been legitimated under California law. From 1933 to 1969, California Civil Code, § 

### 85,read: "The issue of a marriage which isvoid or annulled or dissolved by divorce is legitimate." From 1945 to date, California Civil Code, S 

### 55,now Civil Code, S 

### 4100, reads: "Marriageis a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary. Consent alone will not constitutemarriage; itmust be followed by the issuance of 

### a license and solemnization as authorized by this code

## * * 

## *."
In In re Filtzer's Estate, 33 Cal.2d 776, 205 P.2d 377, 379, the California Supreme Court affirmed an award of a reasonable allowance for support and maintenance to the child of the decedentfather. The mother and father had entered into a ceremonial Mexican marriage, and thereafter lived together as man and wife. The father was, at all times until his death, legally married to another woman. The validity of the Mexican marriage

### was not relevant to the child's claim for the support allowance, the Court stated: 

### " 

## * * * in order to legitimate the issue of a bigamous marriage--as is here involved--under statutes identicalwith or similar inwording to section 85 of the Civil Code, itmust appear that at least one of the parties to such attempted marriage contracted in good faith,believing it to be a valid marriage. See annotation, 84A.L.R. 

### 499, 501

## * * 

## *." While the opinion states the and father thereafter "lived trial court found together

## * that the mother husband and wife", that finding appears to have been of mere evidentiary value. For reasons not pertinent here, defendants in the district court relied on a purported common lawmarriage between the decedent and their mother. Common law marriages are not valid in California. Norman v. Norman, 121 Cal. 620, 54 P. 

### 143, However, in attempting to establish a common lawmarriage between the decedent and theirmother, defendants placed into evidence certain facts which indicated themother, Mildred Thorngren,believed that she and decedent were validly married. Just as the validity of the Mexican marriage in Filtzer's Estate was not determinative of the issue of good faith, likewise the validity of the attempted union between decedent and defendants'mother in California and whether or not itwould be a valid common lawmarriage under the laws of Montana, is not determinative of this appeal. If the district court,on remand, finds that themother of defendants believed in good faith that she and decedent were validly married, then the children of that union are legitimate. The law of California further provides in its Civil Code

"The father of an illegitimate child,by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he ismarried, into his family,and otherwise treating it as if itwere a legitimate child,thereby adopts it as such; and such child 

### is thereupon deemed for allpurposes legitimate from the timeof its birth." A number of California cases have held that the father of an illegitimate child may adopt pursuant to 

### S 230, so that it 

### willbe deemed legitimate, though the father isnot married tothemother, by receiving it intohis home and otherwise fulfillingthe statutory requirements though the home intowhich he receives it is one inwhich he and themother areliving. In

reMcGrew, 183 Cal. 117, 190 P. 804; Serway v. Galentine, 75 Cal.App.2d 86, 170 P.2d 32. Here, the evidence inthe record, if believed, is sufficient towarrant a finding that decedent, with respect toCheralee Johnson and/or Christopher Thorngren, fulfilled tile requirements of Civil Code g 230 and legitimated them. Should the districtcourt, on remand, so find, then they

areentitled toan intestate share of decedent's estate. Denise lllazzucca isnot entitled tothe benefit of this statute since the evidence shows that decedent leftthemother three weeks prior toDenise's birth. While the exact point has not been decided by the Supreme Court of California, that Court's liberality infinding legitimacy, asexemplified by the foregoing discussion, leads us to believe that it would follow the reasoning enunciated inClark-- The Law of Domestic Relations, pp. 132,133, (West 1968): "A larger number of states have enacted broader statutes of a second type, which simply provide that the children of void or voidable marriages or of marriages deemed null in law are legitimate. Atfirstglance this sort of statute appears reasonably satisfactory, but it too raises questions of construction which any well-drawn statute ought toavoid. The term 'voidable marriages' isclear enough and causes no trouble. But what is meant by 'void marriage'? 

## * * * does it legitimize the children of a purported common law marriage which is invalid because the statedoes not recognize cornmon law marriage? Or does it legitimize the children of a liaisonwhich was concededly not a marriage, but which was thoug:~tby some friends of the parties tobe a marriage, and which lasted for an appreciable time?

## * * * If words aregiven their usual meaning, a void marriage 

### is a non-existent marriage. This being so, the literal meaning of the statutes is that allchildren of non-existent marriages are legitimate. Presumably no court would so construe the statutes. The most sensible construction, and the onemost inaccord with the statutory purpose, is that of the Santill case [Santill v. Rossetti, 178 N.E.2d 633 (Ohio Com. P1. 1961)], namely, that such statutes legitimize the children of allde factomarriages, of allrelationships which look likemarriages and inwhich the parties behave ashusband and wife. " The record inthe instant appeal is sufficient to support a finding there was a de factomarriage between decedent and defendants' mother. Therefore, if the district court should, on remand, find defendants are the issue of such a de factomarriage, then they are entitled to be treated aslegitimate heirs of decedent. Defendants next contend that, even if they be found to be illegitimate, they are entitled toinherit from decedent because of his compliance with section 91-404, R.C.M. 1947, which reads: "Every illegitimate child is an heir of the person who, inwriting, signed inthe presence of a competent witness, acknowledges himself tohe the father of such child

## * * *". In support defendants introduced a copy of an application record for the University of California Hospital out-patient department. On the face of the document was the name of the patient, Mildred Bernice Dauenhauer, and listed members of the household as ''~ony husb", "Cheralee dau 16 mos.", and "Chris Son (horn 8-26-51)". Chris was born August 26, 1950. The applicationwas dated "9-8-48". Atthe line entitled "Information Given by" was the signature "Tony Dauenhauer". Mildred Thorngren testified that the applicationwas signed by the decedent inher presence on September 8, 1948, while she was attempting toget obstetrical care while pregnant with Cheralee. Atthat 

### time, none of defendants wereyet born. There isno evidence astowhen the entries "Cheraleedau 16mos." and "Chris Son (born 8-26-51)" were made but itmust have been atsome date subsequent toSeptember 8, 1948. Thus it isevident thatdecedent, by thisdocument, did not 

### meet therequirements of section 91-404, R.C.M. 1947. We do not hold that decedent could not have acknowledged Cheralee as hischild prior toher birth, merely,that by thisdocument, he didnot do so. For the foregoing reasons, thiscause isremanded to the districtcourt for further proceedings not inconsistent with thisopinion and for a determination of (1)whether any or all of the defendants arechildren of decedent; (2) whether any or allof defendants are legitimate because of California Civil Code 

### 5 85 and the interpretation placed thereon by the California courts; (3) whether Cheralee and/or Christopher have been legitimated because of California Civil Code S 230 and the interpretationplaced thereon by the California Courts; and (4) whether any I orallof defendants arethe-legitimateissue of a de factomarriage.

Chief Justice We concur:



# ................................ Justices