Santiago v. Underwood

This is a proceeding to determine heirship. The trial court found that the sole surviving heirs are an adopted daughter and the surviving husband, and that the estate is wholly separate property of decedent. It ordered distribution of the intestate portion thereof in equal shares to daughter and husband (Prob. Code, § 221). The daughter appeals, contending that the marriage of respondent and decedent was invalid, and that Underwood thus has no right to share in distribution.

Appellant’s petition alleged that respondent was the surviving husband of decedent, but relied upon a claimed ante-nuptial agreement as a bar to his sharing in the estate. The claim based upon this agreement has been abandoned on appeal. Respondent had been divorced in Nevada before marrying decedent. In cross-examination of respondent, it developed that Ellen, his former wife, had secured a divorce decree from him in Monterey County after respondent’s marriage to the decedent, Naomi. Appellant then sought leave to amend her statement so as to deny that respondent was the surviving husband. The court took the motion to amend under submis sion and permitted introduction of evidence upon the validity of the…