Estate of Montague

Upon objection to the first and final account of the appellant as administrator of the estate of Nellie A. Montague, deceased, and a petition to determine heirship and distributive rights, filed by the sisters and a brother of said deceased, a decree was made and entered apportioning the estate to appellant and to the said petitioners. The administrator appealed from that portion of the decree which distributed a part of the estate to persons other than himself.

The appellant and Nellie A. Montague intermarried in 1915. On or about May 15, 1925, they ceased living together, and on April 21, 1928, appellant filed a complaint alleging desertion and that “there are no children as the result of said marriage, nor is there any community property”. An interlocutory decree was granted pursuant to personal service and the entry of a default in said action. By his petition for letters of administration in this proceeding appellant represented himself as the only heir at law of said deceased, and in his first and final account he averred that the whole thereof was community property, praying a decree “distributing all of the said estate to Frank P. Montague, surviving husband of the said…