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In re Brandt's Estate

Supreme Court of Arizona

March 1, 1948

In re BRANDT'S ESTATE.
v.
BRANDT BRANDT

Appeal from Superior Court, Pima County; J. Mercer Johnson, Judge.

Proceeding in the matter of the estate of Fritz T. Brandt, deceased, by Leta F. Brandt opposed by Clarine G. Brandt to establish a widow's allowance. From the judgment, opponent appeals.

Judgment affirmed.

Krucker & Fowler, of Tucson, for appellant.

Fred W. Fickett, William S. Dunipace and Robert S. Tullar, all of Tucson, for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Udall, Justice.

Page 498

[67 Ariz. 44] This is an appeal from an order and judgment of the lower court directing the executrix of the estate of Fritz T. Brandt to pay Leta F. Brandt, the decedent's purported widow, a family allowance.

The essential facts are these: On March 17, 1946, Fritz T. Brandt, a marine engineer, died aboard ship at Poti, Russia; he was survived by two women, each of whom claimed to be his lawful widow, Leta F. Brandt, hereinafter called the appellee, and Maude A. Brandt. By a will dated approximately a year prior to his death Brandt left all of his property, consisting largely of $ 4,400 in cash, to his estate, and named his daughter, Clarine G. Brandt, the executrix. The will was admitted to probate and the named executrix duly qualified.

The decedent and Maude A. Brandt were married in the year 1911. In 1943 he brought an action for divorce in the District Court of Harris County, Texas, and she was constructively served in Arizona. She entered no appearance, and on April 27, 1943, a decree was entered by the Texas court purporting to divorce the parties. The decedent then returned to Tucson where on May 4, 1943, he entered into a marriage ceremony with the appellee. On August 8, 1946, the appellee, as surviving widow, petitioned the estate for a family allowance, and asked that the property exempt from execution be set aside to her. The executrix (appellant) filed an amended response to this petition in which she attacked the validity of the marriage between the decedent and the appellee; the executrix contended that the decedent did not acquire a domicile in Texas; that the Texas court did not have jurisdiction to render him a divorce decree, and that therefore the Texas decree was wholly void and invalid and the subsequent marriage of the decedent and the appellee in Arizona was unlawful. The executrix asked that the court invalidate the Texas divorce, declare Maude A. Brandt to be the lawful wife of the decedent, and deny the appellee's petition for a family allowance.

At the request of the executrix the issues thus framed by the petition and answer were set down for trial before a jury. At the close of the trial the court directed a verdict for the appellee on the ground that the executrix was estopped to question the validity of either the Texas divorce or the subsequent remarriage. Whereupon this appeal was taken by the executrix.

Her six assignments of error all bear on the proposition that the plea of estoppel was not available to the appellee under the record here before us. She contends: (a) that the defense of estoppel to be available must be affirmatively pleaded by way of answer or other responsive pleading, before ...


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