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District Court of Appeal, Third District, California.

Harold L. HOTLE, Asa G. Kazebeer and American Trust Company, as executors of the Last Will of Seymour R. Frizelle, also known as S. R. Frizelle, also known as Seymour Frizelle, Deceased, Plaintiffs and Appellants, v. Evelyn F. MILLER, as Special Administratrix of the Estate of Jennie Frizelle, also known as Jennie F. Frizelle, Deceased, Defendant and Respondent.*

Civ. 9296.

Decided: June 26, 1958

Donald M. Scott, Sebastopol, and Lounibos & Lounibos, Petaluma, for appellants. Frank W. Finn, Leon J. Libeu, Sebastopol, for respondent.

Plaintiffs as executors of the will of Seymour Frizelle, deceased, appeal from a judgment of dismissal entered pursuant to an order of the court sustaining defendant's demurrer to plaintiffs' first amended complaint without leave to amend in an action brought against the defendant as special administratrix of the estate of Jennie Frizelle, deceased. By their complaint plaintiffs sought reformation of a written agreement executed by Seymour and Jennie, as husband and wife, and a determination of defendant's adverse claim in a certain bank account of the decedents, and to have title quieted in said account in Seymour's estate by giving effect to alleged provisions of Seymour's will and an alleged waiver by Jennie of her rights in the community property. Defendant demurred generally upon the ground that plaintiffs' complaint did not state facts sufficient to constitute a cause of action, and that it was uncertain and ambiguous in certain particulars. In its ‘memorandum of order’ the court stated said demurrer was sustained upon the ground that it did not state facts sufficient to constitute a cause of action.

The allegations of the first amended complaint may be summarized as follows: Seymour died testate on March 2, 1955, and on March 25, 1955, his will was admitted to probate. Plaintiffs, Harold L. Hotle, Asa G. Kazebeer and American Trust Company, were appointed the executors of the will and were issued letters testamentary. Jennie died on July 17, 1955, and on August 9, 1955, defendant Evelyn F. Miller was appointed special administratrix of her estate. On January 21, 1953, Seymour and Jennie, as husband and wife, orally agreed that all property then belonging to them which stood in the name of either, or in their names as joint tenants or as tenants in common, had been acquired by them as community property, and that all such property and all property thereafter acquired by them should be held as community property regardless of the record title, and that they would enter into a written agreement so providing. On the same day they jointly employed Asa G. Kazebeer as their attorney and instructed him to prepare a written agreement embodying all the terms of said oral agreement, and the same was executed on January 29, 1953. Through mistake, the attorney omitted the provision that all property then owned by Seymour and Jennie and any property thereafter acquired, regardless of the record title, should be held by them as community property. Relying on said attorney to include all the provisions of said oral agreement, and mistakenly believing he did so, they executed said written agreement. By their mutual mistake said written agreement did not embody the actual agreement of the parties. Previously thereto, and on November 6, 1940, Seymour and Jennie had opened a bank account in the Bank of Sonoma County and deposited therein community property in the sum of $1,438.79. At the time of making said deposit Seymour and Jennie executed the usual joint tenancy agreement with each other and with said bank. No other agreement relating to said account was thereafter made with said bank or between Seymour and Jennie other than the said oral agreement of January 21 and said written agreement of January 29. On January 21, 1953, the sum of $32,950.50 was on deposit in said account; on January 29 there was $30,922.84; and $42,357.14 at the time of Seymour's death. By his will, executed on October 20, 1954, Seymour provided for the disposition of all the community property of the spouses. On the same day Jennie executed a written waiver by which she elected to accept the provisions of Seymour's will, waived all claims to her share of the community property and excepted her right to a family allowance. Said funds in said account on Seymour's death on March 2, 1955, were assets of and owned by Seymour's estate, and plaintiffs as executors are entitled to possession thereof. Defendant has no right, title or interest in said funds and claims an interest therein adverse to plaintiffs.

The prayer was that said written agreement of January 29 be reformed; that all adverse claims of defendant in said account be determined; that title in said account be quieted in Seymour's estate; and that plaintiffs be given possession of said funds.

In support of the determination of the trial court defendant contends that by reason of the deposit agreement and the specific wording of section 15a of the California Bank Act1 as it then read, St. 1929, p. 444, the court lacked authority to reform the agreement. The pertinent portion of said section provided: ‘* * * The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which either such bank or the surviving depositor or depositors may be a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.’

We find no merit in such contention. Under the provisions of section 158 of the Civil Code, husband and wife may contract with each other concerning their interests in property, and by such agreement the status of any property owned by them may be changed. Since Seymour and Jennie could so contract, it necessarily follows that reformation of such contract could be had subject to the provisions of Civil Code, section 3399.

‘Our courts have repeatedly held that the mistake of a draftsman is a good ground for the reformation of an instrument which does not truly express the intention of the parties.’ Mills v. Schulba, 95 Cal.App.2d 559, 561, 213 P.2d 408, 410. It is the further rule that ‘in ruling upon a general demurrer, effect must be given to every allegation in the complaint; and the demurrer must be overruled if the complaint states, or from its averments it can be reasonably inferred, that plaintiff has a cause of action against defendant on any theory.’ Beason v. Griff, 127 Cal.App.2d 382, 386–387, 274 P.2d 47, 50; Bracker v. American Nat. Food, Inc., 133 Cal.App.2d 338, 340, 284 P.2d 163. Hence, as against a general demurrer all that is required is that the plaintiff state facts entitling him to some relief. McDonell v. American Trust Co., 130 Cal.App.2d 296, 301–302, 279 P.2d 138. Therefore plaintiffs, having alleged what the real agreement was, what the agreement as reduced to writing was, wherein the writing failed to embody the real agreement, how the mistake was made, whose mistake it was, and what brought it about, the complaint was good as against a general demurrer. Johnson v. Sun Realty Co., 138 Cal.App. 296, 300–301, 32 P.2d 393. Hence it follows that the allegations of plaintiffs' complaint state a sufficient cause of action for reformation of the written instrument.

The judgment is reversed.


1.  Now Financial Code, §§ 850–853.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY J., concur.