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FEIG v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N et al.*
As the surviving husband the plaintiff commenced an action against the defendants to impress a trust on certain real and personal property standing in the name of his wife on the date of her death. On the trial he was nonsuited. An appeal was taken and the judgment was reversed. Feig v. Bank of Italy, etc., Ass'n, 218 Cal. 54, 21 P.(2d) 421. The facts presented by that record are quite fully stated in that decision and need not be repeated. After the remittitur went down, other proceedings were had which resulted in a judgment in favor of the plaintiff impressing a trust on all of the property. On the second trial additional evidence was introduced and the particular facts before the court will be referred to as occasion requires. From the judgment entered in favor of the plaintiff the defendants have appealed.
At this time the defendants make two major points. In the first one they contend that the plaintiff was not entitled to anything. In the second point they contend that the trial court in determining the amount of the plaintiff's interest in the property committed prejudicial error in awarding him anything in excess of fifty per cent. thereof.
In contending that the plaintiff was not entitled to anything the defendants attack several specific items of evidence.
In Feig v. Bank of Italy, etc., Ass'n, supra, 218 Cal. 54, at page 58, 21 P.(2d) 421, 422, the court said: “If, as plaintiff contends and his evidence tends to show, he continuously lived with the decedent from the date of their marriage in 1889 until the decedent's death in 1929 in absolute ignorance of the existence of the divorce proceeding and the decree therein entered, and innocently and in good faith believed himself at all times to be the lawful husband of the decedent, he is entitled to an equitable apportionment of the gains made by their joint efforts.” (Italics ours.) The defendants stress the language which we have italicized and assert that the doctrine of the cases cited is such as to make it a condition precedent that the plaintiff should have pleaded and proved that the parties continuously lived together as man and wife. They then assert that the evidence shows at times Mrs. Feig was absent in Washington and at other times she was absent in Arizona. The record does not show that these trips were not mere visits and there is certainly nothing to show any period of wilful desertion on the part of either of the parties. The point may not be sustained.
As recited by the court in Feig v. Bank of Italy, etc., Ass'n, supra, it was the contention of the defendants that Mr. and Mrs. Feig were married in 1889; that they were divorced in 1890; that the records of that proceeding were burned in 1906; that the records were restored March 23, 1912; and that the parties were a divorced couple from 1890 to 1921, at which time it is conceded they remarried. It is also a conceded fact that the properties in dispute were accumulated during said period. In this connection the defendants contend that by virtue of the divorce proceeding the plaintiff was wholly concluded. They contend that by virtue of the recitals of the judgment in the divorce proceeding it is conclusively proved in this collateral proceeding that the plaintiff was served with summons. He stoutly denies he was served with a summons but concedes the point of law that he is concluded by the recital. However, he contends there is no presumption that every divorce action is conducted to a final decree nor that the final decree is in favor of the plaintiff. And taking another step he vigorously contends that he never knew he had been divorced until his wife suggested, in 1921, that they remarry. While it may appear that the evidence is strange and out of the ordinary, the weight thereof was addressed to the trial court. Furthermore, in this connection it may be properly remarked that the plaintiff sustained his case and corroborated his testimony by the relatives and intimate friends of both parties. Not even a brother of the decedent knew of the divorce until long after the parties had been remarried.
In claiming that the real estate was the separate property of the decedent the defendants call to our attention that on April 24, 1905, the plaintiff executed a deed of gift to the decedent and on March 18, 1912, he executed and delivered a quitclaim deed. Thereupon the defendants assert that the plaintiff will not be heard to claim that he did not give to the decedent his interest in the real estate. The point is not a new one. In Jackson v. Jackson, 94 Cal. 446, 29 P. 957, a set of facts closely similar was involved. Mr. Jackson executed to his wife a deed of gift. Shortly thereafter, for the purpose of correcting that deed, he executed to her another deed of gift, however, under the proof it was held that such facts were addressed to the trier of the facts and not to a court of review.
As will be noted in the decision Feig v. Bank of Italy, etc., Ass'n, supra, it was claimed by the plaintiff that he and the decedent intermarried in 1889; that from that date it was agreed the decedent should be the business head of the family and should handle all properties acquired; and that it was further agreed to place all properties in the name of the decedent in order to carry out said plan. In that connection it was further agreed that the husband and wife should recognize such properties as the accumulation of their joint efforts and in which each should have an equal interest. In the great fire of 1906 the records of title in San Francisco were destroyed. The decedent was advised that she should commence a proceeding to establish the title of record to said property. Stat. 1906, Ex. Sess. p. 78. She informed the plaintiff and he directed her to proceed. Nothing was said by either to the effect that the decree to be obtained was to have the effect of dissolving the trust theretofore established. Thereafter a decree known to the bench and bar as a McEnerney decree was obtained in favor of the decedent. Because it did not specifically protect the rights of this plaintiff the defendants contend he is barred by that decree. The point may not be sustained. Bradley Co. v. Bradley, 165 Cal. 237, 131 P. 750. The only difference between the instant case and the case cited is in the relation of the date of the trust agreement to the date of the McEnerney decree. In the instant case the trust agreement was made over twenty years prior to the McEnerney decree and in the Bradley Case it was made only a few months before the McEnerney decree.
Shortly prior to the death of Mrs. Feig it was found necessary to commence guardianship proceedings. The plaintiff filed the petition. Therein, in attempting to specify her properties he named many, if not all, of the items involved in this litigation. The defendants contend that said statement was so inconsistent with the contention now made by the plaintiff as to be determinative. Counsel for the plaintiff freely concede that the contents of said petition constituted an admission as against interest, but they assert that such admission merely raised a conflict in the evidence and that the conflict was addressed to the trial court and not for the consideration of this court. The contention is clearly correct.
Summarizing the first point made by the plaintiff, we think it is clear it may not be said as a matter of law that the properties standing in the name of Mrs. Feig at the time of her death were her separate properties. This brings us to a consideration of the second point made by the defendants.
That point is that under the facts contained in this record an award of all the properties to the plaintiff was not equitable. They contend the death of Mrs. Feig did not give plaintiff any greater interest in the properties than he had during her lifetime. We think the point is sound. The trial court quite properly received evidence showing “* * * the amount that each party originally owned, the amount each party received while they were living together, and the amount of their joint accumulations.” Fuller v. Fuller, 33 Kan. 582, 7 P. 241, 244. That evidence showed they had nothing when they were married. It also showed that the plaintiff thereafter inherited $175, invested it in railroad securities and lost it; and that the decedent inherited about $500, deposited it in the People's Bank, it failed, and her deposit was lost. The evidence further showed that from 1889, the date of their marriage, down to the date of the death of Mrs. Feig, the plaintiff was almost continuously employed on a wage of about $100 per month which he turned over to Mrs. Feig and that she made the investments, collected the rents, paid the bills, and deposited the surplus in bank. It also showed that she, at times, was on the stage as a songstress and that she probably earned moneys from her employment, but the evidence does not show what the amounts were. There was no evidence of the rights of any third person being involved and there was no evidence, except such as has been mentioned herein, of any act of fraud. In Schneider v. Schneider, 183 Cal. 335, 191 P. 533, 11 A. L. R. 1386; Macchi v. La Rocca, 54 Cal. App. 98, 201 P. 143; Jackson v. Jackson, supra; Figoni v. Figoni, 211 Cal. 354, 295 P. 339, decrees in similar controversies were involved. In each one the trial court divided the properties equally. On appeal each decree was affirmed. In Coats v. Coats, 160 Cal. 671, 118 P. 441, 36 L. R. A. (N. S.) 844, the judgment under attack granted an annulment to the plaintiff husband but awarded the wife $10,000. The facts seem to indicate that the husband was worth in excess of $100,000 but the wife did not appeal. The husband did appeal but the judgment was affirmed. The court said, 160 Cal. 671, on page 678, 118 P. 441, 444, 36 L. R. A. (N. S.) 844: “Even though it may be true that, strictly speaking, there is no ‘community property’ where there has not been a valid marriage * * * the courts may well, in dividing gains made by the joint efforts of a man and a woman living together under a voidable marriage which is subsequently annulled, apply, by analogy, the rules which would obtain with regard to community property, where a valid marriage is terminated by death of the husband or by divorce. The apportionment of such property between the parties is not provided by any statute. It must therefore be made on equitable principles. In the absence of special circumstances, such as might arise through intervening claims of third persons, we can conceive of no more equitable basis of apportionment than an equal division.” (Italics ours.) While the division is to be made “by analogy” to the division of community property, the rule does not warrant the chancellor in applying the community property laws in their entirety. This must be so because as stated in the above quotation there is no statute expressly applicable. Moreover, it has been directly held that such property is not “community property.” Feig v. Bank of Italy, etc., Ass'n, supra. As shown above, ordinarily an equal division will be equitable. As to what are the “special circumstances” which will warrant the chancellor in making a division that is not equal we will not attempt to state. That he is not called upon to cause an account to be taken of the contributions made to the fund by each one of the parties was clearly stated in Ft. Worth & R. G. R. Co. v. Robertson, 55 Tex. Civ. App. 309, 121 S. W. 202, 203, 204. That doctrine was quoted and followed in Coats v. Coats, 160 Cal. 671, 678, 118 P. 441, 36 L. R. A. (N. S.) 844. As a set of facts showing one illustration of what does constitute such “special circumstances” as will justify the chancellor in ordering a division that is not equal, we cite the case of Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 1083, 126 Am. St. Rep. 900. On the 11th of September, 1877, Andrew Buckley married Philomene, his first wife. On October 29, 1877, he deserted her without cause. On the 15th day of October, 1898, he married his second wife, Mary. In 1907, Philomene learned her husband was alive and residing in the state of Washington. She commenced an action for divorce and for a division of the property. Mary commenced an action for annulment and a division of the property. The trial court awarded to each wife one-fourth of the property. Philomene, being dissatisfied, appealed. On this extraordinary set of facts the supreme court of Washington affirmed the decrees entered by the trial court and among other things said: “The value of the property was not found by the trial court. The total value was probably $5,000 or $6,000. Bearing in mind that appellant Buckley accumulated this property, and that he is now 66 years old, in feeble health, requiring support, medical attendance, and nursing, we cannot say that the disposition of the property, as made by the trial court, was erroneous, inequitable, or unjust.” Under these authorities we think it is clear that in these cases the trial court will not undertake to ascertain how many dollars each party contributed to the fund jointly accumulated but, as a general rule, it will divide the fund equally. If, as in Buckley v. Buckley, there are special circumstances, the court will depart from that general rule. In the record before us no special circumstances are present.
The judgment is reversed, with directions to the trial court to enter a judgment not inconsistent with what has been said above.
STURTEVANT, Justice.
We concur: NOURSE, P. J.; SPENCE, J.
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Docket No: Civ. 9523.
Decided: May 14, 1935
Court: District Court of Appeal, First District, Division 2, California.
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