No. 12856 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

IN THE MATTER OF THE ESTATE 

OF DAUENHAUER , ANTON DAUENHAUER 

et al., Deceased. 

KAREN MILLER and JERRY DAUENHAUER, 

Plaintiffs and Respondents, 

DOROTHY DAUENHAUER , CHERALEE JOHNSON, 

CHRISTOPHER DAUENHAUER, DENISE MAZZUCCA, 

ROMONA PLANT, and ALLEN KELLER, 

Defendants and Appellants, 

Appeal from: District Court of the Fourth 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: MAY 8 61 'ig? 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from a judgment of the district court, 

Lake County, which decreed that the only heirs of Anton Dauenhauer 

are Dorothy Dauenhauer, spouse, Karlene Miller, daughter, and 

Jerry Dauenhauer, son. 

Anton Dauenhauer, also known as Tony Dauenhauer, died 

intestate on December 4, 1971. He was a resident of Montana and 

left an estate of real and personal property situated in Montana. 

The surviving spouse, Dorothy Dauenhauer, was appointed administratrix. In her Petition for Letters of Administration, she 

advised the probate court that the heirs consisted of herself, 

Karlene Miller and Jerry Dauenhauer, decedent's children by a 

previous marriage which terminated in divorce in 1944. Subsequently, the administratrix advised the court there were five additional children entitled to share in the 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 default judgment was entered against 

Ramona Plant and Allen Keller and a directed verdict was entered 

in favor of Dorothy Dauenhauer, Karlene Miller and Jerry Dauenhauer. 

At trial, defendants Christopher Thorngren, Cheralee 

Johnson and Denise Mazzucca, sought to establish their heirship. 

Proof was presented by which they attempted to establish that the 

deceased lived with their mother, Mildred Thorngren, then known 

as Mildred Dauenhauer, as man and wife in California from 1947 to 

1951 and that the deceased was their father. Decedent ceased living with Mildred Thorngren in 1951, and never lived with her or 

defendants again. 

In its findings of fact, conclusions of law and judgment, 

the district court concluded the defendants are not heirs of 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. Defendants were 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 re Wray'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. 

In Wray'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 statement must 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 

formal marriage 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 is void or annulled 

or dissolved by divorce is legitimate." 

From 1945 to date, California Civil Code, S 55, now Civil 

Code, S 4100, reads: 

"Marriage is 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 constitute marriage; it must 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 

decedent father. 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 identical with or similar in wording 

to section 85 of the Civil Code, it must 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, 84 A.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 law marriage 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 law marriage between the decedent and their mother, defendants placed into evidence certain 

facts which indicated the mother, 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 it would be a valid common law marriage under the 

laws of Montana, is not determinative of this appeal. If the 

district court, on remand, finds that the mother 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 

is married, into his family, and otherwise 

treating it as if it were a legitimate child, 
thereby adopts it as such; and such child is 

thereupon deemed for all purposes legitimate 

from the time of 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 will be deemed legitimate, though the father is not married 

to the mother, by receiving it into his home and otherwise 

fulfilling the statutory requirements though the home into which 

he receives it is one in which he and the mother are living. In 

re McGrew, 183 Cal. 117, 190 P. 804; Serway v. Galentine, 75 

Cal.App.2d 86, 170 P.2d 32. Here, the evidence in the record, 

if believed, is sufficient to warrant a finding that decedent, 

with respect to Cheralee Johnson and/or Christopher Thorngren, 

fulfilled tile requirements of Civil Code g 230 and legitimated 

them. Should the district court, on remand, so find, then they 

are entitled to an intestate share of decedent's estate. Denise 

lllazzucca is not entitled to the benefit of this statute since 

the evidence shows that decedent left the mother three weeks 

prior to Denise's birth. 

While the exact point has not been decided by the Supreme 

Court of California, that Court's liberality in finding legitimacy, as exemplified by the foregoing discussion, leads us to 

believe that it would follow the reasoning enunciated in Clark-- 

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. At first glance this sort 

of statute appears reasonably satisfactory, but it too 

raises questions of construction which any well-drawn 

statute ought to avoid. The term 'voidable marriages' 

is clear 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 state does not recognize cornmon 

law marriage? Or does it legitimize the children of a 

liaison which was concededly not a marriage, but which 

was thoug:~t by some friends of the parties to be a 

marriage, and which lasted for an appreciable time? 
* * * If words are given their usual meaning, 

a void marriage is a non-existent marriage. 

This being so, the literal meaning of the 

statutes is that all children of non-existent 

marriages are legitimate. Presumably no court 

would so construe the statutes. The most 

sensible construction, and the one most in accord 

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 all de facto marriages, 

of all relationships which look like marriages 

and in which the parties behave as husband and 

wife. " 

The record in the instant appeal is sufficient to support a 

finding there was a de facto marriage between decedent and defendants' mother. Therefore, if the district court should, on 

remand, find defendants are the issue of such a de facto marriage, then they are entitled to be treated as legitimate heirs 

of decedent. 

Defendants next contend that, even if they be found to 

be illegitimate, they are entitled to inherit 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, in writing, signed in the presence of a 

competent witness, acknowledges himself to he 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 application was dated "9-8-48". 

At the line entitled "Information Given by" was the signature 

"Tony Dauenhauer". Mildred Thorngren testified that the application was signed by the decedent in her presence on September 8, 

1948, while she was attempting to get obstetrical care while 

pregnant with Cheralee. At that time, none of defendants were 
yet born. There is no evidence as to when the entries "Cheralee dau 16 mos." and "Chris Son (born 8-26-51)" were made but 

it must have been at some date subsequent to September 8, 1948. 

Thus it is evident that decedent, by this document, did not 

meet the requirements of section 91-404, R.C.M. 1947. We do 

not hold that decedent could not have acknowledged Cheralee as 

his child prior to her birth, merely,that by this document, he 

did not do so. 

For the foregoing reasons, this cause is remanded to 

the district court for further proceedings not inconsistent with 

this opinion and for a determination of (1) whether any or all 

of the defendants are children of decedent; (2) whether any or 

all of 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 interpretation placed thereon by the California Courts; and (4) whether any 

I 

or all of defendants are the-legitimate issue of a de facto marriage. 

Chief Justice 

We concur: 

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Justices