The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-06-28
The First Wife Entitled to Share In
the Distribution.
THE DIVORCE IS ILLEGAL
HUSBANDS INHUMAN TREAT
MENT CAUSED HER INSANITY.
Alonzo E. Hyde Goes After John Beck
-McHenry Scott On Trial For
Mayhem-Marshal Ireland's Will
Emil Leavin Given Another
Observation-Disclosures Notes.

The supreme court yesterday handed
down an opinion in the matter of the
estate of Herman j. Christensen, de-
ceased. The opinion, which was writ
ten by Chief Justice Zane and con-
Cured in by Justices Bartch and Mi
ner, reversed the Judgment of the low
er court and directed it to recognize
the petitioner, Hannah Christensen, as
the lawful widow of the deceased and
TO adjudicate the rights of the respec-
tive parties found to have an interest
in his estate, and to make payment or
distribution thereof according TO law.
1t appeared from the record that Her
man J. Christensen, late of the city of
Manti, in the county of Sanpete, died
intestate on June 26. 1897, the owner of
an estate valued at 81, 571.96; that three
children of Hannah Christensen, his
first wife, and two children by his last
alleged lawful wife. Petrea Sorenson
Christensen, from whom he was di-
vorced after their birth, survived him;
that after Luther T. futile had been
appointed administrator of the estate
and had filed an inventory thereof, in
the probate court, Hannah Christensen,
by her guardian, Theodore E. Christen-
sen, filed her petition as the intestate'S
widow for an allowance from his es-
tate. 1t also appeared that the admin
istrator answered the petition, admit
ting the marriage. but alleging a di-
Vorce on Dec. 3, 1854. by a decree of
the probate court Of Sanpete county:
and that petitioner afterwards inter-
married with John Hathaway, and that
she was, therefore, eStopped from
claiming she was the widow of the de-
ceased.
1t further appeared that the district
court, sitting for the disposition of
probate business, after hearing the evil.
dence offered by both sides, without
nying the prayer of the petitioner.
From this order the petitioner, by her
guardian, appealed to the supreme
court.
The question presented to the su-
prema court for decision was whether
the petitioner was the lawful wife of
the intestate at the time of his death.
and as his widow is she entitled TO an
interest in his estate?
The court held that the decree was
void, and on the question of estoppeI
says: An estoppel cannot be based
on a void decree or judgment If the
decree or judgment is simply voidable,
a different rule may be applied. When
the court has jurisdiction of the sub
Ject matter of the suit and of the par
ties, and the decree of judgment may
be reversed or set aside for error or
irregularity, if the defendant valves
his right to do so by executing or ac-
cepting it, he will be estopped from
denying its binding effect: but when
such a judgment is void for any rea-
son, he Will not be estopped. The void
decree in controversy was obtained by
the decedent when he knew he was
not entitled to it. The evidence is
conclusive that about a. year before
the divorce he married young girl,
and, in view of that fact, his lawful
wife had a complete defense to a di-
vorce at his instance. Besides, ne had
deserted and abandoned his wife and
had taken her children from her under
circumstances SO cruel and hard as to
overthrow her reason. Under such
circumstances there is no legal rule or
equitable principle that would have
permitted the decedent during his life
time to be divorced from her because
of her imbecility or misconduct, which
his unl1ind and inhuman treatment
brought about. Nor can his admins
traitor or heirs rely upon it to defeat
her rights as his widow. She is not
responsible for the void decree, nor
does il appear that she consented to
it. In her forlorn, wretched and pitia-
bic condition she did say that she did
not want divorce, and it appears
from the evidence that from that dav
she has been incapable of forming a
rational conclusion with respect to the
consequences and effects of her own
actions When her husband was the
subject of conversation, her feelings
and emotions overwhelm her reason.
Owing to the peculiar circum-
stances of the case we are of the
opinion that the petitioners right to an
interest in the decedent's estate has
survived, notwithstanding the statute
of limitations and the lapse of time
and that this aged woman, with her.
physical and mental inf1rmities. is en-
titled, as his widow, to an interest in
decedents estate, and to whatever
comfort it may afford her during the
remainder of her DAYS"