Nichols

I dissent. It is my view that respondent has failed to meet the burden of proving the illegality of her marriage to Nichols, that the finding of the probate court that respondent is the widow of the testator is without substantial *284 support in the evidence, and that the.portion of the judgment appealed from should be reversed.

For what appears to me to be a logical and convincing refutation of the views taken by the majority of this court, reference is made to the opinion prepared by Mr. Presiding Justice Peters for the District Court of Appeal, First Appellate District, Division One, reported at (CaLApp.) 193 P.2d 90 .

In further support of appellant’s position herein, and of the conclusion reached by the District Court of Appeal, it may be pointed out that for aught that is shown in the record the testator, a sea captain, may and must be presumed to have secured a decree of divorce in some domestic or foreign jurisdiction, the validity of which decree respondent, by virtue of her subsequent marriage to Nichols, is now estopped to deny. (See Kelsey v. Miller (1928), 203 Cal. 61, 86-87 [ 263 P. 200 ]; In re Kyle (1947), 77 Cal.App.2d 634, 639-640 [ 176 P.2d 96 ].) The…

Lewis Warren Smith died on May 28, 1945, leaving a holographic will dated April 7, 1942. By his will he bequeathed “to my wife the sum of Five Dollars” and $500 to the widows’ and orphans’ fund of a lodge of Masons, and left the residue of his estate to the Branford Baptist Church of Connecticut.

Amy Edith Smith, respondent, filed a claim against the estate alleging that she is the widow of the testator. She claims that she is entitled to two-thirds of the estate on the ground that charitable bequests under section 41 of the Probate Code may not collectively exceed one-third of the estate as against the spouse of the decedent.

It is undisputed that respondent married the testator in January, 1926, and that they lived together until 1932 or 1933. It is also undisputed that in November, 1938, respondent entered into a marriage ceremony with Ralph N. Nichols, with whom she lived until May 13, 1945. After evidence was introduced relating to the marital status of respondent, the probate court found that respondent was the widow of the testator, and entered a decree of distribution, ordering that two-thirds of the residue of the estate be distributed to her. After completion of the…