IN RE ESTATE OF MILLIMAN

McFARLAND, Justice.

This petition for review was accepted to review a decision of the Court of Appeals, Div. No. 2, 2 Ariz.App. 155, 406 P.2d 873, modified on rehearing, 2 Ariz.App. 338, 409 P.2d 54, which affirmed an order by the Superior Court of Pima County voiding all acts of an administratrix insofar as such acts affected the rights of certain survivors of the decedent, including an order authorizing the compromise and settlement of a claim for wrongful death.

The events leading up to this appeal are stated as follows: Willard J. Milliman, hereinafter referred to as Milliman, on July 15, 1950, married one Clarabelle Jean Woodcock, hereinafter referred to as Clarabelle, in the State of New York. Willard John, Henry Roger, Beverly Ann, John Lewis, Michael Andrew, and Susan Jane were children all born of this marriage. On April 12, 1956, Milliman left his wife, Clarabelle, and six children at home in New York and departed for work. He never returned. Milliman arrived in Willcox, Arizona, in the summer of 1956. While in Willcox, he married Maxine Roberts, whom he subsequently divorced. No children were born of this marriage. Thereafter, Milliman married Lucy Mae Horn, hereinafter referred to as Lucy, in Lordsburg, New Mexico, on February 6, 1960. Lucy, at the time of her marriage to Milliman, was the mother of an illegitimate child, one Hollis C. Rodriguez. In the course of her marriage to Milliman, she gave birth to Wayne Alexander Milliman. Another child was born of this marriage, but died shortly after its birth. The record on appeal shows that Milliman obtained only one divorce, that being the one from Maxine. On March 2, 1961, Milliman was killed in an automobile accident, which occurred in the State of Arizona.

Lucy filed a petition for letters of administration on May 2, 1961, alleging:

Notice was given only to the persons mentioned above. Lucy was appointed administratrix on May 15, 1961. On that same date, she petitioned the court in her individual capacity and as administratrix for authorization to compromise and settle for $50,000.00, the wrongful-death claim arising out of the auto crash. The petition was approved, and, in compliance with the court's order, the Farmers Insurance Company, hereinafter referred to as Farmers, paid Lucy the money. Lucy received individually $33,333.33, while Hollis Gordon Milliman (evidently the Rodriguez child) and Wayne Alexander Milliman received $8,333.33 and $8,333.34, respectively, which funds were placed in court-controlled accounts in the Catalina Savings and Loan Association in Tucson. Lucy was appointed as guardian of these estates. On July 27, 1961, Lucy filed the final account, and petitioned for a final discharge as administratrix. Discharge was granted by the court commissioner on August 24, 1961.

On April 25, 1962, Neil J. Ward, hereinafter referred to as Ward, on behalf of Clarabelle and her six children, filed a petition to revoke the letters of administration issued to Lucy, alleging that at the time Lucy filed her petition to be administratrix she was not Milliman's legal widow; that Lucy knew of the existence of Clarabelle and the six children; and that Lucy gave no notice to these heirs even though she knew of their existence. On December 13, 1962, a hearing was held on this matter before Pima County Court Commissioner Marks, and a record was made. Clarabelle testified, in part, as follows:

The record shows that no papers or notice of any proceedings for divorce had ever been served upon Clarabelle either before or after Milliman left New York. In October of 1957 he married Maxine Roberts of Willcox. That marriage was terminated by divorce in Pima County shortly before the marriage of Milliman to Lucy. Margaret Bonnin, Lucy's mother, testified that the decedent had said some two years before her daughter's marriage to him that he was divorced from Clarabelle in New York, and that he had one child that was up for adoption, and that his folks would not have anything to do with him because they were Catholic.

Clarabelle stated that she knew of Milliman's death very shortly after it occurred, and that she had not filed any action with regard to the estate until the following year because she "didn't think there was anything there." Lucy's mother testified that Milliman's relatives who attended the funeral informed her that Milliman was still married to Clarabelle as they knew of no divorce, and that there were six children of that marriage. She stated that Lucy was told this information the day of Milliman's funeral. She further stated that Lucy had mentioned to Farmers' representative that Milliman and Clarabelle had a child. In an order dated December 13, 1962, the court revoked Lucy's letters of administration and Ward was appointed administrator de bonis non.

On May 22, 1963, a hearing was held on Ward's petition to have the court set aside its order approving the compromise and settlement of the wrongful-death claim. Lucy testified that Milliman had told her of his marriage to Clarabelle and that he had one child as a result thereof, which child she believed was subsequently adopted. Lucy stated that she informed the representative of Farmers of this prior marriage and child. She stated that Milliman had told her that he was divorced from Clarabelle. Margaret Bonnin testified that she was present when Lucy, prior to the settlement, told Farmers' representative of the prior marriage, divorce, and of the child in New York. Tom Mabry, the representative of Farmers who had handled Lucy's claim, testified that he had never been informed by Lucy or her mother of the existence of the prior marriage and child, and that his records did not disclose any such information. Mr. Udall, the attorney for the insurance company, who had prepared the paperwork for Lucy in settling the claim, made an avowal to the court: "I have absolutely no recollection of anyone telling me about the wife or adopted child at any time until I was first contacted by Mr. Ward."

Farmers contends the trial court erred when it set aside its earlier order authorizing settlement of the wrongful-death claim. Farmers alleges that the trial court had jurisdiction to enter the order, and that in the absence of fraud on the part of Farmers (legal counsel for Farmers had prepared all the paperwork for Lucy), the order should stand. Farmers further alleged that the failure of Clarabelle to file a motion to set aside the order within six months after the order was entered precluded the court from entering its order to set aside its earlier order.1 Rule 60(c) does not afford the only grounds for setting aside a judgment.

A court which makes a void order may at any time on its own motion or the motion of party move to set aside such void order. "The void judgment creates no binding obligation upon the parties, or their privies; it is legally ineffective." 7 Moore's Federal Practice § 60.25[2] (2d ch. 1955), p. 263, footnote #29. This rule of law is succinctly stated in Moore's Federal Practice, supra:

If Milliman was not divorced from Clarabelle, then the marriage between Milliman and Lucy was void ab initio, and the orders of the court which allowed Lucy to settle the wrongful-death claim as the surviving spouse were also void. The law is well settled that a marriage between persons, one of whom is married to another, is void. 35 Am.Jur., Marriage § 148; and the second marriage is "good for no legal purpose." 35 Am.Jur., Marriage § 148.

The facts of this case show there was a valid marriage between Clarabelle and Milliman, and the issue of this marriage was six children; that Milliman had never divorced Clarabelle before marriage to Lucy; that he left New York on April 12, 1956, arriving in Arizona during the summer of that year; that in October 1957 he married Maxine Roberts, which marriage was dissolved by divorce; and that he thereafter married Lucy in Lordsburg, New Mexico, on February 6, 1960. Farmers contends there was a presumption that the second marriage was valid, and that this overcame any presumption of the continuance of the first marriage. Farmers also contends that the evidence to rebut the presumption of the second marriage must be clear and conclusive as to fairly preclude any other result, and cites Kolombatovich v. Magma Copper Co., 43 Ariz. 314, 30 P.2d 832. In discussing the decision in this case in Roy v. Industrial Commission, 97 Ariz. 98, 397 P.2d 211, we said:

In Cross v. Cross, 94 Ariz. 28, 381 P.2d 573, we reviewed the decisions in regard to presumption, including Kolombatovich, supra, after which we stated:

In Hodges v. Industrial Commission, 73 Ariz. 326, 241 P.2d 431, we stated:

The record in the instant case shows there was sufficient evidence wherein the lower court could make a finding that there never was a divorce between Clarabelle and Milliman. We have often stated that this court will sustain a judgment on appeal if it can be sustained upon any theory which is within the issues and supported by the evidence. Phelps Dodge Corp., Morenci Br. v. Industrial Commission, 90 Ariz. 379, 368 P.2d 450; Mountain States Construction Company v. Riley, 88 Ariz. 335, 356 P.2d 648; Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141. In order to make a ruling that all the acts of Lucy as administratrix were "null and void," insofar as they affected the rights of Clarabelle and the six children, the trial court would have had to find that in fact the marriage between Lucy and Milliman was void. We hold there was sufficient evidence to support such a finding of the court that the marriage between Milliman and Lucy was void.

A determination of the effect of the proceedings on the rights of the parties in the instant case requires an examination and interpretation of the wrongful-death statute. There are two distinct proceedings under wrongful-death statutes. One is a claim for damages to the survivors; the other is for damages to the estate.

The courts, including our own, have generally held that this depends upon the wording of the particular wrongful-death statute. Our wrongful-death statute first appeared in 1887 in which it was provided the action was to be for the sole and exclusive benefit of the surviving husband, wife, children, or parents.2 In 1901 it was substantially changed to provide every such action to be brought in the name of the personal representative.3 The law remained the same until 1956, when it was amended to provide the action shall be brought in the name of the surviving husband, wife, or personal representative of the deceased person.4

We agree with the conclusions of the appellate court in In Re Milliman, supra, in its original opinion, in an excellent analysis of the effects of the respective amendments to the wrongful-death statute.

We enacted our wrongful-death statute for the first time in 1887. § 2145 et seq., Revised Statutes of Arizona, 1887. This provision was strikingly similar to the original Lord Campbell's Act of England. Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 P. 401. This statute created a new cause of action for the benefit of the beneficiaries named in the statute, but recovery under such statute is not an asset of the deceased's estate. Annot. 14 A.L.R. 516 (1921).

This statute was amended in 1901 to provide that the cause of action was one for the benefit of the estate, rather than for the benefit of the named beneficiaries. Southern Pacific Co. v. Wilson, supra.

In A.R.S. § 12-612, adopted in 1956, we have re-enacted the substance of the provisions making the action for the benefit of the surviving husband, wife, children, and parents, as found in the 1887 statute. The claim is not an asset of the deceased's estate. A.R.S. § 12-612, subsec. A, reads as follows:

Under the 1956 statute the claim is for damages to the named survivors rather than damages to the estate. A.R.S. § 12-613 provides, in part:

It is therefore the conclusion of this court that a wrongful-death claim of a surviving widow and children is not a claim "* * * by * * * the estate" under the provisions of A.R.S. § 14-474.

Dockery v. Central Arizona L. & P. Co., 45 Ariz. 434, 45 P.2d 656, and Estate of Hannerkam, 51 Ariz. 447, 77 P.2d 814, cited by Farmers, wherein it was held that wrongful-death action is one pertaining to the estate of deceased, were decided under the statute as it existed prior to 1956. Thus they are not applicable to the instant case.

The amendment of 1956 makes plain the action is only for the benefit of decedent's estate when there are no "surviving husband or wife, children or parents." The question then is in regard to the jurisdiction of a probate court where there are survivors, and the authority of the personal representative to compromise a claim.

It will be noted that under paragraph D of § 12-612, A.R.S., it is provided:

Other states having similar statutes hold the administrator or executor acts in this capacity as a statutory trustee. In the case of Dominguez v. Galindo, 122 Cal.App.2d 76, 264 P.2d 213, brought under the wrongful-death statute in California, the court said:

In the case of Bright's Estate v. Western Air Lines, 104 Cal.App.2d 827, 232 P.2d 523, the plaintiff brought suit for damages resulting from wrongful death, and the court held:

The case of Anderson v. Clough, 191 Or. 292, 230 P.2d 204, was an action for damages under the Oregon wrongful-death statutes.5 As the first affirmative answer and defense, defendants alleged that by virtue of an order made and entered in the Circuit Court of Marion County, Oregon, an administrator had made a claim for damages in behalf of the estate of decedent which was compromised and settled. The administrator received the money from defendants and executed a release on behalf of the estate in full settlement of all claims which said estate and the administrator thereof might have had against defendants. The petition for appointment of administrator, among other things, alleged that the decedent "* * * departed this life in Salem, Marion County, Oregon, * * *" and that at the time of his death was an inhabitant of the State of Oregon.

The court, after holding the proceedings in the probate court were void, said:

It seems plain that A.R.S. § 12-612 permits a wrongful-death action to be brought by either the surviving husband or wife, or by the personal representative. This permits the surviving husband or wife to compromise the action without even bringing suit, but they would be acting as a statutory trustee for the other beneficiaries, if any, in which event they would have to get the consent of any other surviving relatives. If there were minors, a guardian would have to be appointed, and the court would have to approve the compromise. The compromise would be valid only if made with the proper parties. They could, of course, if appointed by the court as administrator or executor of the estate, get permission of the probate court to make the compromise; or if a third person were appointed administrator or executor and therefore qualified as personal representative he could bring the suit or make the compromise but he too would be acting as statutory trustee for the survivors, if any.

Since the proceedings are in personam, and not in rem as in a probate proceeding, the only way defendant could protect himself in such a compromise proceeding would be to require that the compromise be made on behalf of, and the money paid to, those found by the court to be heirs entitled thereto under the same proceedings as provided in the distribution of an estate. Otherwise, as stated in Anderson v. Clough, supra, the doors would be open to widespread fraud because through ex parte proceedings instituted by creditors quick settlements could be made wholly without regard to the interests of those whom the statute is designed to benefit, and the real parties in interest would be deprived of their rights.

In the instant case, the petition for settlement made by Lucy alleged:

The offer of compromise was conditioned upon the execution by the petitioner individually and as administratrix of a full and complete release. She also alleged that she had been appointed guardian of the persons and estates of Hollis Gordon Milliman and Wayne Alexander Milliman, minors, and asked for permission to execute individually and as administratrix of the estate a full and complete release; also that she be permitted to pay herself as guardian of the minors the sum of $16,666.67 and to herself $33,333.33. It was under this petition that the compromise of settlement was made, and the order for distribution was signed by the court on the same day it was filed. Payment was thereafter made in accordance with the petition. Lucy was therefore acting in her individual capacity, and purporting to act as statutory trustee of the two minor heirs named in the petition.

Lucy admitted that when she filed her petition for letters of administration and to compromise the claim she had knowledge of the previous marriage, and that there had been no divorce, also that she had knowledge of the six children of the prior marriage. The attorneys for the insurance company, who prepared all of the papers, acted in good faith, and had the facts been as represented to them by their client the compromise would have been valid. But the client negotiated with a person who did not have a right to make a settlement, as she was not the surviving wife, and therefore it acted at its peril. Anderson v. Clough, supra. A compromise and settlement made on petition of a person in her individual capacity and as Administratrix who fraudulently represented herself to be a widow, and fraudulently concealed from the court a legal survivor, which was acted upon by the court on the same day it was filed, and without notice to the legal widow and other surviving children, is not res judicata as to such legal widow and surviving children.

Farmers contends that the remedy would be an action against Lucy for fraud. This would not be a remedy in the instant case, as Lucy has admittedly squandered the money paid to her, and she having filed a petition in her individual capacity was only required by the court to give a one-dollar bond. Where a party has been prevented from learning of the proceedings, or asserting a timely claim, it has been held to be extrinsic fraud. Honk v. Karlsson, 80 Ariz. 30, 292 P.2d 455. Under this general rule of law, the court in the instant case had the authority to set aside the judgment. However, Clarabelle and her children are not limited to an equitable action against the defrauding party to impress a constructive trust, for the reason that Lucy was acting in her individual capacity, and made the settlement as the surviving wife of decedent. Lucy not having been the legal wife of the decedent, and the court having so found, her actions in that capacity were void and there was no legal settlement. Honk v. Karlsson, supra.

Farmers contends that it was an innocent party and for this reason should be protected. While there is no contention made that Farmers was guilty of fraud, both Lucy and her mother testified they had informed the claims adjuster, Tom Mabry, there was "another child." While Mabry testified that he did not recall being told of another heir, the court could have found he was so informed. The fact that Mabry did not know the importance of informing the attorneys for Farmers, who drew all the papers, or was negligent in failing to inform them, does not relieve the company of its responsibility. Had he so informed the attorneys this whole fraud perpetrated upon the parties could have been avoided. Notice to the agent is notice to the principal. The insurance company knew that it was dealing with Lucy in her individual capacity, as its attorneys had prepared all the papers which Lucy had signed and presented to the court, and in fact prepared the papers for all the proceedings. Undoubtedly this was done to save Lucy money, but in so doing the company assumed a greater responsibility in the case, and regardless of whether Farmers had knowledge of another heir it dealt with Lucy in her individual capacity, and did not protect itself in the proceedings, and paid the money over to Lucy individually as the surviving wife of the decedent. Hughes v. Riggs Bank, 29 Ariz. 44, 239 P. 297.

Where one of two innocent parties must suffer, the loss must be borne by the one whose act caused the loss. Dissing v. Jones, 85 Ariz. 139, 333 P.2d 725. Farmers contends the trial court should have ordered the monies now on deposit under the guardianship for the minors returned to the court. There is evidence in the case that Milliman is not the father of one of the minors, and this minor is not entitled to any of the money paid. There has been no determination made as to surviving children. This can only be done after proper notice.

The decision of the Court of Appeals is vacated. Judgment affirmed.

STRUCKMEYER, C.J., BERNSTEIN, V.C.J., and UDALL and LOCKWOOD, JJ., concur.