Long Beach, Los Angeles county, made by plaintiff to defendant.

[1, 2] The ground of annulment was that, at the time of her marriage to plaintiff, defendant was the wife of another man. That she had falsely represented herself as being an unmarried woman, when, in fact, there was a former husband living from whom she had not been divorced, was the principal ground upon which the conveyance, made by plaintiff after the purported marriage and upon the belief that defendant was his wife, was set aside. Other fraudulent representations were alleged and found to have been made, such as that she had always been of

9. EVIDENCE 597-SUFFICIENCY-PRESUMP- chaste and moral character, was a nurse,

TION.

Under Code Civ. Proc. § 1961, providing that a prima facie presumption may be controverted by other evidence, but that unless so controverted, the jury must find according to the presumption, the court, where there was nothing to offset the presumption in favor of the validity of a marriage assailed on the ground that defendant had a former husband living, was required to find according to the presumption; and that the evidence may have satisfied the court that the defendant was an unchaste woman, guilty of other wrongful acts, could not authorize it to disregard the presumption.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. 597.]

10. MARRIAGE 40-ANNULMENT-PRESUMPTION OF LEGALITY-GOOD FAITH.

would be a kind, dutiful, and affectionate wife, etc. As we understand the findings as to this, all such representations were made prior to the marriage, and really as an inducement thereto and to the conveyance of certain property in Pasadena, made before the marriage, and which the trial court refused to set aside, and the findings in this connection mean only that the plaintiff relied upon the same in making the subsequent Long Beach property conveyance. Upon the authority of Barnes v. Barnes, 110 Cal. 418, 42

of the marriage or the setting aside of the Long Beach property conveyance..

Pac. 904, it must be held that these findings must be discarded from any consideration In an action to annul the marriage on the which will give to them the effect of sustainground that defendant had a former husband living the judgment either as to the annulment ing from whom she had not been divorced, where the plaintiff's evidence did not show that the former husband was alive at the time of defendant's subsequent marriage to plaintiff, defendant was not called upon to show her honest belief that such former husband was not living; Civ. Code, § 61, subd. 2, providing that a subsequent marriage contracted by one "during the life of a former husband," is valid until its nullity is adjudged by a competent tribunal, if the former husband is absent, and not known to such person to be living for 5 successive years preceding the subsequent marriage or is generally reputed or believed by such person to be dead at the time of such subsequent marriage not applying to such case.

[Ed. Note. For other cases, see Marriage, Cent. Dig. §§ 58-69, 79; Dec. Dig.

40.]

In Bank. Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by Thomas Wilcox against Carrie Wilcox. Judgment for plaintiff annulling the marriage and canceling a certain conveyance of real property made by him to defendant.

Motion for new trial denied, and defendant appeals. Judgment and order reversed.

Parker & Moote, J. W. McKinley, and Frank Karr, all of Los Angeles, for appellant. Trask, Norton & Brown and Edgar K. Brown, all of Los Angeles, for respondent.

ANGELLOTTI, C. J. This is an appeal by defendant, Carrie Wilcox, from the judgment and from an order denying her motion for a new trial. The judgment was one annulling the marriage between the parties and canceling a certain conveyance of real property in

[3] It was further alleged and found, it may be conceded, that this conveyance was made not only because of plaintiff's belief that defendant was his lawful wife, but that it was induced by a representation on defendant's part that the property would be kept as a home or support for them both, and that she would not convey it away or incumber it without his consent. It was then incumbered by a mortgage for $2,000, and subsequently defendant, without plaintiff's consent, increased the mortgage lien to $3,000. There is absolutely no evidence to sustain a conclusion that defendant ever promised that she would not incumber the property, and there is nothing in the evidence to show that, in so far as any act of defendant is concerned, the property has not been kept for the purposes of a home for the parties. The

mere additional incumbrance of $1,000 did not destroy its character as such, and there is nothing to indicate that it would have that effect.

[4] If any finding of the court may reasonably be construed as showing undue influence on the part of defendant in obtaining this conveyance, it is entirely outside the issues made by the pleadings, the complaint containing no suggestion or intimation to that effect, and must be disregarded. Nor can we find in the evidence any support for such a finding.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[5] It appears to be settled that the mere relation of husband and wife does not constitute prima facie evidence of undue influence as against the wife. Stiles v. Cain, 134 Cal. 170, 66 Pac. 231; McDougall v. McDougall, 135 Cal. 316, 67 Pac. 778.

We are satisfied that the judgment of the trial court can be sustained only on the theory that the evidence was sufficient to sustain its conclusion that the former husband was living at the time of defendant's marriage to plaintiff, and that if it was not sufficient for that purpose, the judgment must be reversed. The evidence as to this was substantially as follows: The marriage between plaintiff and defendant occurred on June 29, 1910. Some 17 or 18 years before that date defendant married a man named Albert Broberg, in St. Paul, Minn., and lived with him 3 days in Winnebago, a town near St. Paul. They then separated, he leaving her, she testified, and shortly thereafter she left the town and went to Philadelphia to her folks. She did not know where he went. She went by the name of Broberg for almost 2 years. She never obtained a divorce from Broberg, nor he from her. In 1898 or 1899 she married a Dr. Lehman in New York. Before marrying the latter she tried to find out where Broberg was. She went to where "he used to live" near St. Paul, and could not find him. A deputy sheriff told her that he was dead. She testified positively that "he is dead," acknowledging, however, in answer to a later question, that her statement to that effect was based solely upon what the deputy sheriff told her. She never saw him after they sep arated. He was a healthy, rugged man, about 33 to 35 years of age. Dr. Lehman, who was over 70 years of age, and she lived together only about 3 years, and he died June 8, 1910, a few days before defendant's marriage to plaintiff.

It will be seen from the foregoing that there was no affirmative evidence from which it might lawfully be inferred that Broberg was alive on June 29, 1910, other than that to the effect that he was alive 17 or 18 years before, and was then 33 to 35 years of age, and rugged and healthy. The most that can

be said as to this evidence, however, is that it might possibly be held sufficient to create the prima facie presumption that he was still alive, nothing to the contrary appearing.

But, as was said in Hunter v. Hunter, 111

Cal. 261, 267, 43 Pac. 756, 31 L. R. A. 411, 52 Am. St. Rep. 180:

It is pre

"This presumption of the continuation of life is, however, overcome by another. sumed that a person is innocent of crime or wrong. Code Civ. Proc. § 1963. There is also a presumption, and a very strong one, in favor of the legality of a marriage regularly solemnized. Rather than hold a second marriage invalid and that the parties have committed a crime or been guilty of immorality, the courts have often indulged in the presumption of death in less than 7 years, or, where the absent party was shown to be alive, have allowed a presumption that the absent party has procured a di

vorce. A more correct statement perhaps would be that the burden is cast upon the party asserting guilt or immorality to prove the negativethat the first marriage had not ended before the second marriage."

This rule was held to apply in civil as well as in criminal cases, and People v. Stokes, 71 Cal. 263, 12 Pac. 71, claimed to establish a different rule, was disapproved. In McKib bin v. McKibbin, 139 Cal. 448, 73 Pac. 143, an action for divorce, it appeared from the plaintiff's testimony that prior to her marriage with the defendant, she had been lawfully married to one Lake, who was still alive. It was claimed that plaintiff was bound to show a dissolution of that marriage to make out a prima facie case, but it was held substantially by the trial court that, as a divorce may have been granted or the marriage annulled, she was entitled to rely on the presumption of innocence of crime, the court saying:

"I am inclined to take the view that proof of solemnization, aided by the presumption that the solemnization was regular, would overcome the she had two husbands." presumption of bigamy, that would result if

[6] This court said that it "quite" agreed, quoting from 1 Bishop on Marriage and Di

vorce, as follows:

"Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of proof, the law raises a strong the burden of proof on the party objecting, but presumption of its legality-not only casting requiring him throughout, in every particular, to make plain, against the constant pressure of presumption, the truth of law and fact that it is illegal and void."

[7, 8] These cases must be taken as establishing it to be the law in this state that the burden of proof is on the party assailing a marriage on the ground that a former husband or wife is still alive, to show not only the former marriage, but also that it has not been dissolved by death or judicial decree, and that the prima facie presumption in favor of the validity of the marriage assailed outweighs the presumption of the continuance of life of the former husband or wife. There is nothing in any subsequent case to impair the effect of these decisions.

It is true that in Hunter v. Hunter, supra, the trial court had found in accord with the presumption, in favor of the validity of the marriage, and that this court simply sustain

ed a finding on the ground that it had sufficient support in the evidence. It is also true that in McKibbin v. McKibbin, supra, the court did no more than to hold that such presumption was sufficient to make out a prima facie case. In neither case, therefore, was this court called upon to declare that the trial court must find in accord with such presumption. And, of course, whether it must do so or not depends upon the evidence in the particular case.

of such presumption, the court or jury must [9] If there is nothing to offset the effect find in accord therewith. It is expressly pro

"The belief of a party in the death is material only, as appears from the cases referred to by the court, when as a matter of fact the party is

alive."

vided in section 1961, Code of Civil Procedure, that a satisfactory or prima facie presumption may be controverted by other evidence, direct or indirect, "but unless so controverted the jury are bound to find accord-section 61 of the Civil Code, a subsequent Under the provisions of subdivision 2 of ing to the presumption." In the case at bar the last date on which the former husband life of a former husband or wife of such marriage contracted by a person during the was shown to be alive was some 17 years before defendant's marriage to plaintiff. There person, is valid until its nullity is adjudged was absolutely nothing to indicate that he "former husband or wife is absent, and not by a competent tribunal, if the was alive at any later date, except the pre-known to such person to be living for the space sumption of continuance of life. To conclude of five successive years immediately preceding that he was alive on June 29, 1910, involved such subsequent marriage, or is generally reputthe conclusion that the marriage to plaintiff ed or believed by such person to be dead at the time such subsequent marriage was contracted." was illegal, and that defendant had twice committed the crime of bigamy, first in marIn a case arising under this provision, a rying Lehman, and then in marrying plain-case involving the question whether the second marriage is valid notwithstanding the tiff, with no evidence whatever upon which to found such a conclusion other than the former husband or wife is alive and the forpresumption of continuance of life. That the mer marriage has not been dissolved or anevidence generally may have satisfied the nulled, of course. the element of good faith trial court that defendant was an unchaste and belief of the party that the former huswoman and was guilty of other wrongful acts band or wife is dead is an essential element, could not authorize the court to disregard the for the statute expressly so makes it. Such presumption of her innocence of these crimes, a case was Estate of Richards, 133 Cal. 524, and the presumption of the legality of her 65 Pac. 1034, relied on by respondent and marriage to plaintiff. As well might it be cited by the learned District Court of Appeal contended that the effect of the presumption in support of its ruling that good faith and of innocence existing in favor of a defendant honest belief are elements in the case at bar. There is not a word in the opinion in charged with a crime can be overcome by proof that he has been guilty of other dis- that case which is opposed to the views tinct and different crimes, or is altogether a enunciated in Hunter v. Hunter, supra. The wicked and depraved individual. If there same is true of Estate of Harrington, 140 Cal. was any circumstance tending to show that 244,1 also cited by the District Court of ApBroberg was alive at the date of defendant's peal. Section 61, Civil Code, is not applicamarriage to plaintiff, a case might fairly be ble here at all. Its provisions relate solely held to have been made upon which the court to a subsequent marriage "contracted by any was authorized to find against the presump-person during the life of a former husband or tion. But here we have nothing opposed to wife of such person," etc. If the former the presumption other than the fact that he husband or wife is not shown to have been was alive at a remote date, some 17 years living at the time of the subsequent marbefore. The case is one where the presump-riage, which is the case here, no situation is tion is not controverted by other evidence, presented which the party is called upon to direct or indirect, and where, accordingly, combat by a showing of honest belief that the court is bound to find according to the such former husband or wife was then depresumption. ceased.

[10] The learned District Court of Appeal, in deciding this case, were of the opinion that the question of the good faith of the party invoking such a presumption in a case of this character was a material element to be considered, and, finding in the evidence no direct statement by her that she believed the statement made to her that Broberg was dead, or any direct statement that she had never heard from him, concluded that the showing of good faith was not such as to require the trial court to find in accord with the presumption. We are inclined to think that the analysis of defendant's evidence in this regard was somewhat critical and technical, but assuming it to be fairly warranted by the record, we are unable to see that the element of good faith or belief of defendant is at all involved in such a matter as the one before us. As is said in the petition for a hearing in this court:

From what we have said it is apparent that the judgment of the trial court cannot be sustained.

The judgment and order denying a new trial are reversed.

We concur: SHAW, J.; SLOSS, J.; MEL VIN, J.; HENSHAW, J.

NICHOLSON et al. v. LEATHAM et al. (L. A. 3410.)

(Supreme Court of California. Dec. 16, 1915.) WILLS 221-PROBATE-VACATION-FRAUD. The existence of a fiduciary relation on the part of those securing probate of a will is not essential to the making of a sufficient case of extrinsic fraud to warrant a court of equity in charging the executors, etc., with a trust in favor of the defrauded parties and setting aside the judgment of probate.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 539-541; Dec. Dig. 221.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
173 Pac. 1000, 98 Am. St. Rep. 51.

Appeal from Superior Court, Kern County; Milton T. Farmer, Judge.

Election contest by J. H. Thornber against J. O. Hart. Judgment for contestant, and the contestee appeals. Reversed.

Borton & Theile, of Bakersfield, for appellant. E. L. Foster and Chas. A. Barnhart, both of Bakersfield, for respondent.

The appellant objected to the making of We concur: SHAW, J.; SLOSS, J.; LORI- this amendment, both on the ground that it GAN, J.; MELVIN, J.

have stated the particulars in which it is charged that malconduct was committed on the part of the officers conducting the election. In the statement of contest first filed it was not alleged in any way that contestant would rely upon proof to show there had been a delay in the opening of the polls in any precinct; while he assigned malconduct, he particularized in allegations pointing to certain specific acts and things. It is to indulge great liberality indeed toward the contestant to concede his right to file the amendment that was made. It is also exceedingly questionable whether the statement in the amendment was sufficient to show such a delay in the opening of the polls as would make a good ground of contest, for the quantity of time embraced within that delay is not stated; it is only stated that the polls were not "opened at the time required by law." In the case of Packwood v. Brownell, 121 Cal. 478, 53 Pac. 1079, the specification of malconduct which our Supreme Court held to be insufficient was:

"That the said board of judges of election of Pitt river precinct did not open the polls at sunrise of said day of election nor keep the polls open for the length of time required by law."

The court further expressly found that none of the acts or omissions of the election officers of precinct 20 were done or permitted with any fraudulent design on the part of said election officers, nor for the purpose of affecting the result of the election. The evidence taken showed that the board of election officers arrived at the precinct in time to open the polls as required by law, but that the key to the building was missing. A search was instituted for the key, and some outsider finally found it, and the polls were thereupon immediately opened and votes received. So it appears that the delay in the opening of the polls which the court found to be without any fraudulent intent or intent to affect the result of the election, but still found to be inexcusable, was occasioned through the failure of the officers to make an entrance into the building or polling place. That the confusion in this regard was inex cusable we think can hardly be concluded from the evidence. As is said in Packwood v. Brownell, hereinbefore cited:

"It must be from the nature and necessity of the case that the Legislature intended that some margin, even though narrow, should be allowed for honest effort to comply with the statute, and did not intend that the vote of any precinct should be invalidated because the polls were not open at the very instant of sunrise. Therefore, further, if any person seeks to take advantage of omission in this regard, he must allege some delay sufficient to show a transgression of the statute inconsistent with an honest and intelli gent endeavor to obey its command, or that the violation of its letter on which he relies has operated to obstruct the full and fair expression of the suffrage of the precinct."

It will be remembered that, for aught that the findings of the court show, the 21 persons or more who left the polls of precinct 20 before 7:15 o'clock may have returned and voted during the many remaining hours of the election day. Therefore, if the burden was upon the contestant to show that he had been

In the case just cited the ruling of the trial court, on a motion to dismiss the contest because of insufficiency of the specification, was reviewed, and the judgment reversed. However, it will not be necessary for us to announce a final conclusion on these two propositions, as we think that the main contention of appellant made as to a proposition which involves the crucial finding of the trial judge, must be sustained. The court at the hearing of the contest canvassed the vote cast in all the precincts of the supervisorial district, and rejected the entire vote of precinct No. 20 because there had been a delay of 1 hour and 15 minutes in the opening of the polls. The result of the tally on the precincts, excluding precinct 20, gave to contest-injured by reason of the alleged failure of ant a majority of 55 votes. Precinct No. 20 was a large precinct. There were residing in it at the time of the election 733 registered voters, and the election returns showed that 549 of these had voted at the election, and that 239 had voted in favor of appellant and 163 in favor of contestant. So that, had the vote of precinct No. 20 not been rejected, the contestee would have had a majority of 11 votes over respondent. The court finds that the polls in precinct 20 were not opened until 7:15 a. m., and that there was not sufficient cause or excuse for the failure to open the polls; that between the hour of 6 a. m. and 7:15 a. m. at least 50 voters came to the polling place of precinct 20 and demanded the right to cast their ballots, and offered to vote, and that:

"Because of the polls not being open for the reception of ballots, a large number, to wit, more than 21, left the polls and were unable to vote, and it is not shown whether such voters did vote on said 3d day of November, 1914, or not."

the officers to have the polls open at 6 a. m., it is plain, according to the findings of the court, that he did not sustain this burden by proof. It is argued, however, that upon a showing being made of the delay in opening the polls, a presumption of damage arose which shifted the burden of proof to the contestee and required of him a showing that the irregularity did not result in damage to the contestant. This question and those incidental to the proposition were considered in the case of Kenworthy v. Mast, 141 Cal. 268, 74 Pac. 841. In that case it was shown that there was a delay of from 6 to 7:45 o'clock in the opening of the polls of a certain precinct, a delay of 30 minutes more than the evidence and findings disclose here occurred in the case of precinct 20. The court there said that it had never been held in this state that a literal compliance with the provisions of the law as to the hour of opening the polls was absolutely essential to the validity of the vote of a precinct, and that the disobedi