From a judgment in a proceeding to determine heirship, adjudging that appellee was the lawful wife of Julio Jubala, deceased, the appellant has prosecuted this appeal.
Julio Jubala, also known as Jawala Singh, died in Dona Ana county, N'. M., on the 27th day of December, 1932. He had been married to the appellant, Soledad Garcia Jubala, for several years, and had four children. Upon his death, appellee, a citizen of India, filed a petition in the probate court, praying to be adjudged his legal wife and heir. She alleged that she and deceased were married June 3,. 1898, in Punjab District, India, and that they had never been divorced. That deceased left India in 1907 and had never returned. Appellant does not contest the fact that deceased and appellee were married in India, but does contend that appellee has not overcome, by clear and convincing proof, the presumption in favor of innocence, morality, and legitimacy that supports the legality of the later marriage between appellant and deceased. The entire probate proceeding was appealed to the district court under section 34-422, Comp.St.Ann.1929, providing for removals to the district court.
Appellee relies, largely on depositions of witnesses taken in India to establish her marriage with deceased and that the marriage had not been dissolved. This testi-
mony, while not without serious discrepancies, was held to establish that appellee and deceased were married in India on June 3, 1898, when she was 12 years old and deceased was 11. This date was testified to be the date of such marriage by a half dozen or more Indian witnesses, whose testimony as to the year deceased left India was conflicting and unsatisfactory. Ap-pellee testified that at the date she gave her deposition (December, 1932) she was 45 years old; that she and deceased were married June 3, 1898, cohabited together as husband and wife 6 years, when deceased left for America. Thereafter, in her deposition she stated they went to the house of her father-in-law as soon as married and there she lived with deceased 3 years; that deceased left India for America in 1907; that he had been gone 24 years. If they were married in 1898, they must have lived together 9 years, and not 3 as she testified, though 3 years can be accounted for by her father-in-law, who testified to-the effect that they did not cohabit as husband and wife until 3 years after marriage, and so cohabited 3 years after that. This does not account for the other 3 years between her marriage-in 1898 and the date (1907) she testified deceased left for America. It would seem that such discrepancies are unusual for a witness so interested. Her own father testified that they had lived together “over two years when deceased left for America.” From this testimony it could be inferred that deceased left India in either 1901, 1903, 1907, 1908, or 1909. And, to make it more confusing, *314another witness, a resident of California, testified that he and deceased left India in 1910 on the same ship, and that deceased was taken off in China and quarantined for a disease of the eyes. The court seems to have accepted the testimony of this witness, though deceased was in New Mexico in 1909. Still another witness testified that he left India in 1910 and deceased left the year before. All of this testimony was given by appellee’s witnesses by deposition, and raises a doubt as to whether there was in fact a marriage, and incidentally any necessity for a divorce, and particularly whether appellee has covered all the time after deceased left India, in carrying the burden of proving the marriage, if it existed, had not been dissolved. The testimony shows that deceased entered America at the Port of Douglas, Ariz., in 1909. One witness testified that deceased spent a year or two in Old Mexico en route to the United States, but he could not have had personal knowledge of this. There is some testimony to the effect that he stopped in China, Japan, and the Philippine Islands, in any one of which countries it may be assumed he could have been divorced from appellant. Assuming that the parties were married as claimed, we are not satisfied that appellee has furnished proof of that convincing character required to overcome the presumption that the first marriage had been dissolved, which we hold necessary under the facts of this case. De Vigil v. Albuquerque & Cerrillos Coal Co. et al., 33 N.M. 479, 270 P. 791; Sy Joe Lieng v. Gregorio Sy Quia et al., 228 U.S. 335, 33 S.Ct. 514, 515, 57 L.Ed. 862.
The evidence is satisfactory that no divorce had been granted after deceased arrived in New Mexico in 1909. A Mexican lawyer testified that no state of the Republic of Mexico had laws under which a divorce could have been granted in, and prior to, 1909. Appellee depends for her proof covering the time unaccounted for on testimony to the effect that no divorce is permissible under the laws of India, that she had nevér received notice of any divorce proceeding nor been served with process in any such suit; and the testimony of two Indian witnesses who testified that deceased had stated to them just prior to the time he married appellant that he had a wife in India, but that was far away and he was going to marry in New Mexico. It is true these witnesses testified at the trial, and the court witnessed their demeanor while testifying, and could better judge of their credibility than this court; nor is it at all probable that deceased would have made such statements had they been false; but such testimony can be given without danger and cannot be disproved — the man who, it is claimed, made the declaration is dead. If the testimony given by deposition had been satisfactory, this evidence might, with more reason, have been accepted as proof that appellee and deceased had not.been divorced ; but it, with its frailty, must be considered along with all the other testimony in the case, and, when so considered, the proof is not so clear, strong, and unequivocal as *315to produce a moral conviction in our minds that the marriage in India, if it ever existed, was a bar to a legal marriage in New Mexico. This, we hold, should be required in this case, in which appellee testified she had not heard directly from deceased for twenty years, made no attempt to ■communicate with him, though she heard of him at times, asserted no claim or right of a wife during his lifetime, but her interest, ■or that of others ostensibly in her behalf, became apparent only when the opportunity arose ater his death to claim a community interest in an estate she had no part in •earning. In the meantime he had married appellant and reared a family of four children.
' While the facts in the case are not so ■strong in appellant’s favor as that in favor of the Philippine wife in Sy Joe Lieng et al. v. Gregorio Sy Quia et al., supra, yet we think the language in the opinion in that case, which we quote, applies here:
“In these circumstances every presumption was in favor of the validity and good faith of the Philippine marriage, and sound ■reason required that it be not impugned and discredited through the alleged prior marriage save upon proof so clear, strong, and unequivocal as to produce a moral conviction of the existence of that impediment.- The conflicting testimony, isolatedly considered, did not measure up to this standard, and clearly it did not do so if proper regard was had for the probative force of the conduct of all the parties concerned during the many intervening years. Then, too, the lips of Sy Quia and Yap Puan Niu had been sealed by death, and this, with the long interval of time, gave unusual opportunity for the use of fabricated testimony, the untruth of which it would be difficult to expose.
“Giving due effect to these considerations, we cannot say that the Supreme Court of the Philippines erred in holding that the Chinese marriage .was not adequately proved. Indeed, we regard the evidence as not producing a moral conviction of the existence of' that marriage, but as leaving the issue in serious doubt. The decree is accordingly affirmed.”
The case will be reversed, with instructions to deny appellee’s claim and enter judgment for appellant, finding appellant is the legal wife of deceased and entitled as such to that portion of his estate allowed by law. It is so ordered.
SADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.