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District Court of Appeal, Second District, Division 1, California.


Civ. 17639.

Decided: July 31, 1950

Kenny & Morris, and Joseph W. Aidlin, all of Los Angeles, for appellants. Preston & Files, Eugene D. Williams and Ralph E. Lewis, all of Los Angeles, for respondent.

Plaintiffs, the widow, children and grandchildren of Walter J. Field seek to recover certain personal property having an approximate value of $42,000, held by defendant as trustee under a declaration of trust.

When the declaration of trust was executed in January of 1928, trustor Walter J. Field placed in trust four insurance policies on his own life, two of which were issued in 1887 and 1894, respectively, and the other two in 1900. The trust provided that after the death of trustor, the net income from the corpus should be paid to the widow and seven named children in equal shares, and upon the death of the survivor of the widow and such children, the net estate should be divided equally among the then living grandchildren. The trust also contained spendthrift provisions prohibiting the transfer of any interest therein by the beneficiaries, and a clause that if any provision of said trust was judicially declared invalid, the remaining provisions should be effective nevertheless.

At the time the declaration of trust was executed, the wife of the trustor, plaintiff Maria de la Cinta Povedano Field, by a writing attached thereto declared that she had read and was fully acquainted with the contents of the trust, and in consideration of the benefits conferred upon her thereby, consented to, approved, ratified and confirmed the same, expressly waiving all of her community interest in the insurance policies.

After the trustor's death in 1931, his estate was probated, said plaintiff Maria being the sole distributee by virtue of assignments to her from the seven children. The insurance policies were collected and the proceeds invested by defendant trustee in stocks and bonds.

The complaint alleges that plaintiff Maria was born in Spain in 1878; that she and decedent trustor were married in Costa Rica in 1902 and moved to California in 1920 bringing the insurance policies with them; that the premiums thereon were paid out of joint earning and accumulations of the parties; that her husband and other members of her family conversed with Maria in Spanish; that she did not learn to read or understand the English language until 1932. Also, at the time she signed the waiver, no explanation was given her of its legal effect, her husband stating ‘that her signature was a mere technical formality’ in the transfer of property entirely owned by him, and ‘that she had no right in or control of the life insurance policies'; that on December 24, 1948, the seven children assigned to her any interests they had in the trust estate. The prayer is for a transfer to Maria of the bonds and certificates of stock held in trust, or their value, the sum of $42,000.

Plaintiffs appeal from the judgment in favor of defendant.

The questions involved herein are recited in appellants' opening brief as follows:

‘May a widow, with the consent of all of the other living heirs at law, recover community property from the trustee of purported trust where the trust was void ab initio because created by waiver of her community interest, signed by her at her husband's request, at a time when:

‘(a) She was unable to read English (the language in which the waiver was written),

‘(b) She relied upon the advice of her husband, and

‘(c) She was not informed by him or any other peron as to the waiver's legal effect?’

In effect, the point here urged is that the conveyance in trust amounts to a gift of community personal property without the consent of the wife. Sec. 172, Civil Code.

Appellant Maria testified that at the time the waiver was executed her husband ‘had me sign, he said ‘It is the right thing’ and I made it. He always say, ‘You should sign,’ I did. That is all. He didn't explain anything in Spanish.'

With respect to other documents ‘he always said to me, this paper I like, and you sign, but I never know what kind of paper it was.’ Also that he never discussed the life insurance policies with her; community property law or her community interest.

It was stipulated that from the date of their arrival in California on July 17, 1920, to the date of trustor's death, the premiums on the insurance policies were paid out of community property.

On cross-examination, Maria testified that she agreed without question to everything her husband did in reference to the business of the family. ‘Anything he asked that I sign, I did it.’ When ‘he fixed up this trust at the Bank * * * I went there * * * he didn't tell me anything.’ In answer to the question: ‘Then your testimony is, so far as this trust is concerned, Mr. Field didn't talk with you about it at all?’ Mrs. Field replied: ‘Absolutely.’

Since the premiums from 1920 to 1931 were paid with community funds, there is no doubt that a certain percentage of the proceeds of the policies constituted community property. McDougald v. First Fed. Trust Co., 186 Cal. 243, 244, 199 P. 11. That this was clearly understood by the trustor is evidenced by the fact that he had Mrs. Field expressly waive any rights she had to community property. Fraud on the part of trustor has not been alleged or proved in this action.

While it was established that trustor made no explanation to Mrs. Field as to the legal effect of her waiver, there is nothing in the record tending to prove that she did not understand what she was doing when she signed the document in question.

And assuming that she did not understand the import of her act in 1928, no excuse has been offered for failing to assert her alleged right after she became conversant with the English language in 1932. To the contrary, she continued to accept the benefits of the trust without question from her husband's death in 1931 until the instant complaint was filed on February 18, 1949.

Upon the issues presented, the trial court concluded (1) that the written and acknowledged consent of Mrs. Field to the declaration of trust was given with her full knowledge and consent and not by reason of any misrepresentation or other improper conduct on the part of her husband; and (2) that she was guilty of laches and therefore was barred and estopped to maintain the instant action. Such conclusions are based upon the court's findings which in turn are amply supported by the evidence.

The judgment is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.

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