Cheney v. City & County of San Francisco Employees Retirement System

[567]

SHENK, J.

The plaintiff, as administratrix of the estate of Thomas Walter Cheney, deceased, commenced an action to quiet title to a fund payable by the City and County of San Francisco out of the employees retirement system fund, pursuant to Ordinance No. 9134, effective January 8, 1932. The defendant, Florence Cheney, the mother of the decedent, filed a cross-complaint alleging that as the named beneficiary of the fund she was entitled to the whole thereof. The plaintiff alleged that the fund was the community property of the decedent and herself and pressed her right thereto as the surviving widow. The trial court by its judgment awarded one-half of the fund to the plaintiff and the other half to the cross-complainant. The latter prosecuted this appeal from the judgment.

The decedent, Thomas Walter Cheney, entered the employ of the City and County of San Francisco on March 17, 1929, and continued therein up to the time of his death on December 15, 1933. The employees retirement system, in effect at the time of his employment and as subsequently amended on January 8, 1932, provided that on the death of the employee his estate or the beneficiary nominated by him should receive his accumulated contributions to the fund and a sum equal to the compensation earned by him during the six months immediately preceding his death.

Cheney married the plaintiff on February 5, 1932. On the same day the spouses entered into a written agreement that any existing debts of one should not be collectible out of any of the property of the other whether acquired or earned before or after their marriage, and that the earnings of each after the marriage should continue to be the separate property of the one so earning.' On August 7, 1933, Cheney filed an action for divorce against the plaintiff in which the wife cross-complained. Both the complaint and cross-complaint contained the allegation that there was no community property belonging to the spouses. The court in the divorce action made no finding relative to community property and the interlocutory decree adjudging the right of the wife to a divorce did not include an adjudication relative to community property rights. The interlocutory decree was entered in October, 1933, and in the

[568]