MOORE, P. J. William Slavens McNutt departed this life January 25, 1938, leaving two women, each claiming widowhood by reason of his death. He was married to Georgia Mc-Nutt, the plaintiff, August 6, 1907, and abode with her until after his infatuation with Louise Glorius, defendant, in 1924, when he abandoned plaintiff. In 1926, while plaintiff was destitute and broken in health, under decedent’s duress and upon his fraudulent representations that he would do nothing for her if she consulted her own lawyer, and solely by reason thereof and because of her dire need, she signed a writing whereby decedent agreed to pay her $50 per week. In 1927, while residing and being actually within the State of New York, decedent procured a decree of divorce from a court at Hermosillo, State of Sonora, Mexico, and promptly pretended to celebrate a marriage with defendant. He lived with her until his dissolution.
Upon the passing of decedent, defendant petitioned for letters of administration of his estate, alleging that she was the widow. Thirteen days later, plaintiff filed her petition in the same proceeding alleging her long coverture, the invalidity of the property settlement by reason of said fraud and duress, and the nullity of said Sonora decree because of want of the court’s jurisdiction in that decedent never established residence in said Mexican state. Because of these facts, plaintiff asserted her right to administer the estate and to possess it all by reason of decedent’s intestacy. Subsequently, basing her cause upon said duress and fraud of decedent and the asserted nullity of said divorce decree, plaintiff filed a civil [546]action for the recovery of: (1) $7,900, the proceeds collected by defendant on a life insurance policy purchased by decedent with community funds; (2) a certain yacht given defendant by decedent; and (3) all other movables given or delivered and all moneys paid to defendant by decedent in excess of the household necessities of decedent and defendant. The actions were consolidated for trial, which resulted in findings in accordance with plaintiff’s allegations in both cases and in two separate judgments from which these appeals are taken.
In addition to the findings above indicated, the court determined also that defendant procured a divorce in the State of Nevada from Leo V. Glorius, while she was a resident of the State of New'York; that all gifts to defendant by decedent were paid out of community moneys; and that plaintiff was ignorant of decedent’s wealth and income at the time of said settlement.
From the facts as found, the court decided that the Nevada and Sonora divorce decrees were void; that decedent’s marriage to defendant was void; that plaintiff was decedent’s lawful wife at the time of his death; that plaintiff is entitled to recover said $7,900; and that plaintiff is the lawful owner and entitled to the possession of said yacht and all other movable property and moneys delivered and paid to defendant by the decedent.
Defendant relies for a reversal upon the following: (I) That the plaintiff was estopped from asserting the invalidity of her divorce from, and the property settlement with, decedent; (II) that the validity of the property settlement was not properly at issue; (III) that the court erred in declaring void the gifts made to the defendant in toto-, and (IV) that the court erred in refusing testimony as to the relations existing between plaintiff and decedent and his brother from the date of the settlement to the date of decedent’s death.
I. There is no doubt that the Sonora decree of divorce was void. It is held in New York that “the basic principle underlying the entire subject is that only one sovereignty possesses jurisdiction over the marital status, and that is the one in which the matrimonial domicile exists”, etc. (In re Shuff’s Estate, 151 Misc. 754 [272 N. Y. Supp. 418].) In California it is held that “domicile is necessary to give a court jurisdiction in an action for divorce . . . and a state cannot exercise through its courts jurisdiction to dissolve a [547]marriage where neither spouse is domiciled within the state ... To hold that the courts of Mexico ever acquired jurisdiction to render the decree presented by appellant would be a travesty on justice. ...” (Ryder v. Ryder, 2 Cal. App. (2d) 426 [37 Pac. (2d) 1069] ; People v. Harlow, 9 Cal. App. (2d) 643 [50 Pac. (2d) 1052].)
Since a divorce proceeding is an action in rem and both parties and the state have an interest in the res, the Mexican decree obtained by the decedent was properly impeached because of lack of jurisdiction. Nothing could be done to confer jurisdiction upon the Sonora court except to reside within that Mexican state. The plaintiff here, who was defendant there, was powerless even by written stipulation to confer jurisdiction upon the foreign court. (Kegley v. Kegley, 16 Cal. App. (2d) 216 [60 Pac. (2d) 482].) If she could not stipulate it by writing, she could not by her subsequent silence retroactively cure the vice of the decree which she was entitled to show in the California courts to defeat an attempt to establish rights based upon such judgment. (Estate of Bruneman, 32 Cal. App. (2d) 606 [90 Pac. (2d) 323].) Since the foreign decree was void for lack of jurisdiction in the court, it was proper to show that fact upon the trial when its validity was asserted against plaintiff’s legal rights. (DuQuesnay v. Henderson, 24 Cal. App. (2d) 11 [74 Pac. (2d) 294].)
The authorities cited by defendant to establish the validity of the Sonora decree are not apropos. In the Bruguiere case (Bruguiere v. Bruguiere, 172 Cal. 199 [155 Pac. 988, Ann. Cas. 1917E, 122]), the court was not concerned with a decree void upon its face. It dealt with a decree which was vicious because of the public policy of California which invalidates a decree when gained by simulated domicile. Also, she had remarried, waiving all claims upon him who had procured an illegal decree. She never questioned the legality of his decree until her subsequent marriage had proved a failure. In the Morehouse case, (Tex. Civ. App.) [111 S. W. (2d) 831], the couple had lived together fifteen years when he obtained a divorce in Texas upon his false affidavit of her nonresidence. The proceedings were strictly in accordance with statutory law. He remarried two years later, in 1924, effected a settlement with plaintiff in 1925. She was estopped because the second wife was an “innocent participant in the second mar[548]riage”, because the court had jurisdiction of the res, and because plaintiff had accepted payments under their property settlement for over ten years and she treated “it as valid and acts as an unmarried person in violation of any obligation incident to the former status”. The Texas court had jurisdiction but was imposed upon by the husband’s fraud, of which the wife had actual knowledge. Drummond v. Lynch, (82 Fed. (2d) 806) is not a parallel because (1) the court did have jurisdiction and (2) the wife treated the divorce as valid by her own remarriage. In Dry v. Rice, 147 Va. 331 [137 S. E. 473], the husband sued only after his wife had already divorced him. In Berman v. Thomas, 41 Ariz. 457 [19 Pac. (2d) 685], jurisdiction was not involved. In Hughes v. Leonard, 66 Colo. 500 [181 Pac. 200], the court found neither duress nor fraud. The case of In re Davis, 106 Cal. 453 [39 Pac. 756], raised no question of rights of inheritance by the former wife. Having coneededly waived such rights, she sought to administer upon his estate. A wife with full knowledge that her husband has, through fraud or perjury, not going to the jurisdiction of the court, obtained a decree of divorce, may not sit idly by for years and until he is deceased and then successfully invoke equity to gain property lost by acquiescence in acts prohibited by law or public policy. (McElrath v. McElrath, 120 Minn. 380 [139 N. W. 708].) But in the case at bar, the fraud and perjury committed by the decedent went to the jurisdiction of the court. Consequently the decree cannot estop the plaintiff now from asserting her rights as community survivor. Neither reason nor morals require her to journey into a foreign land, among strange people, to answer the call of a court that had not the slightest claim to jurisdiction over her status.
In spite of the nullity of said decree and its inefficacy as a basis of estoppel, defendant contends plaintiff is es-topped by virtue of the property settlement, which she made with decedent in October, 1926. It is claimed that by her silence and inaction after the settlement, and by her continuous receipt of the payments it provided until decedent’s death, she should be estopped even though the nullity of the decree be conceded. The language of that writing is as follows:
“The said Georgia McNally McNutt agrees to and does hereby grant, remise, release and quitclaim unto the said William Slavens McNutt all her right, title, interest and [549]dowry in and to all real estate whereof the said William Slavens McNutt is or may hereafter become seized or possessed and also agrees and does hereby release the said William Slavens McNutt of and from all claims of every character and description.”
Conceding for the moment that the fraud and duress found by the court are without sufficient support, this instrument strictly construed, as it must be (Jones v. Lamont, 118 Cal. 499 [50 Pac. 766, 62 Am. St. Rep. 251] ; In re Garcelon’s Estate, 104 Cal. 570 [38 Pac. 414, 43 Am. St. Rep. 134, 32 L. R. A. 595]) does not purport to surrender plaintiff’s position as heir of her husband or her right to administer upon his estate, or her interest in his personal property. At the most, she released nothing but her (1) dower interest, and (2) interest in his realty. In view of the language used, the court would not have been justified in reading into the contract terms which the parties did not deem necessary to express their intention. It is a definite doctrine of the law that courts will not enlarge the language of a postnuptial agreement “so as to deprive either spouse of such rights unless there is a clear and unmistakable intention to barter them away and to reach such conclusion the contract must not be of doubtful interpretation but must by express terms or by necessary implication, clearly so provide”. (Girard v. Girard, 29 N. M. 189 [221 Pac. 801, 35 A. L. R. 1493].) Defendant attempts to bolster her claim of estoppel by the authority of In re Davis, supra. That case is not pertinent. Mrs. Davis agreed “that she will receive the same in full satisfaction of all claims she may have as wife of said W. W. Davis on any property which he now has or may in any manner acquire . . . and surrender forever all claims of any nature she may now or hereafter have against any property he may now have or may hereafter in any manner acquire”. But even with such comprehensive language to defeat Mrs. Davis’ claim to administer the estate, Mr. Justice McFarland, in a concurring opinion raised a doubt as to “whether or not she did so relinquish her heirship”.
If it had been the intention of the parties that plaintiff should waive her right to inherit from decedent, under such circumstances as those presented, “the easiest and most natural thing in the world would have been for them to have simply, plainly and in apt language said so”. (Girard v. [550]Girard, supra.) By releasing her dower rights, we cannot construe that it was the intention of the parties that decedent was effecting a release of plaintiff’s rights of inheritance or of her rights as a widow. (Sullings v. Richmond, 5 Allen (Mass.), p. 187 [81 Am. Dec. 742].)
To amend decedent’s writing so as now to exclude plaintiff from inheriting his estate would be to deny the possibility that he suffered a change of heart; that memories of his early attachment had diverted him from the execution of a will in favor of defendant. A reasonable interpretation of the property settlement contract requires the conclusion that the rights now asserted by plaintiff were not by said instrument forfeited.
But, upon proof which was deemed sufficient for the trial court, the property settlement was annulled. While the evidence is meager, it is ample to warrant the finding of duress, if not of fraud. The judgment annulling the contract on those grounds, being supported, must stand. This renders the plea of estoppel, based upon the contract, without force even though plaintiff had by its terms sacrificed all of her rights by an acceptance of said property settlement. Plaintiff had been wronged immeasurably. Driven from her home after nineteen years of conjugal loyalty and service to decedent, only after his fatuous infatuation with a younger woman; forced by his duress to accept a pittance of his earnings as her “share” of the community estate, why should she now be condemned to silence by the plea of one who knowingly participated in wrecking a home, in sending an unhappy woman into seclusion, and in usurping the chair that was not hers by law or by common morality I This cannot be merely because, to defeat distress, she used the meager stipend tossed from her husband’s bounty and to which she was entitled in the absence of a contract. Moreover, defendant suffered no detriment by the plaintiff’s modest withdrawal from conflict. Rather did she, unmolested, reap the benefits of decedent’s prosperous annual income through eleven years; in one year, it exceeded the figure of $49,000. Through plaintiff’s reticence, defendant was left to exult in a realm which she would never have known had she declined the benefit of illicit alliances and the advantage of fraudulent divorces. Only one who is innocent may be permitted to plead an estoppel based upon timidity and forbearance, and [551]then only when the same innocent would suffer deprivation by denying her plea. Since plaintiff was the lawful heir to the estate seized of her husband at his death, now that he has passed on, she is strictly within her rights to declare the facts to gain her own. (Trimble v. Trimble, 219 Cal. 340 [26 Pac. (2d) 477].) Nothing that she did or failed to do with respect to the decree can create an estoppel. (Ryder v. Ryder, supra.) Nothing that she did or failed to do with respect to the property settlement can now defeat her legal claims. She maintained her status; she neither married nor published that she was a single woman and the pittance paid her was far less than she was entitled to receive as the wife of decedent. In no sense has defendant been damaged by plaintiff’s behavior.
The authorities cited by defendant in support of her plea of estoppel are not in point. In the Estate of Sloan, 179 Cal. 393 [177 Pac. 150], Mrs. Sloan had received with her settlement properties and moneys that were adequate and far in excess of that required for her support. In the Estate of Yoell, 164 Cal. 540 [129 Pac. 999], the couple had been married thirty-five years. She executed a property settlement upon the advice of counsel. In asking for an increase of allowance, she did not even plead fraud in its procurement. Furthermore, under the agreement, her husband had paid her certain moneys and conveyed to her certain lands. The agreement stood unimpeached and the rights of the parties were left to be adjudicated in accordance with its legal terms and -effect.
The contention that plaintiff should have restored the consideration for the settlement in order to be entitled to rescind is unsupported. In any ordinary ease of rescission, a tender of benefits received is the primary predicate to a successful maintenance of an action. Two exceptions often occur, namely: (1) Where the thing received by the injured party has no value, and (2) where the thing received is no more than the oppressor was bound to deliver to the oppressed in the absence of a contract. It were manifestly unjust to require of a wife, as a prerequisite to the maintenance of an action for rescission of a property settlement on the ground of fraud, that she restore to the husband the moneys received by her and used for living expenses, which, under the law she would have been entitled to receive and use notwithstand[552]ing the contract. (Locke-Paddon v. Locke-Paddon, 194 Cal. 73 [227 Pac. 715]; Milekovich v. Quinn, 40 Cal. App. 537 [181 Pac. 256].)
Since the plaintiff herein was entitled to receive “a modest personal allowance” from her husband, who counted his annual income in the tens of thousands, it would have been inequitable to require the plaintiff to restore the sums which had supported her in her distress in order to maintain her action. (Milekovich v. Quinn, supra; Green v. Duvergey, 146 Cal. 379 [80 Pac. 234].) No estoppel arises from the acceptance of benefits provided for by a contract, where the person accepting is entitled thereto, regardless of the transaction in question. (21 Cor. Jur. 1208.)
II. The validity of the settlement was a proper issue of the action. It was the subject of a lawsuit because its validity had never been adjudicated. It is attacked directly here in these two proceedings. Plaintiff is entitled to have it cancelled that it might not be an extant record against her claim as community survivor. She was entitled in either action “to assert all claims and defenses pertaining to her property rights because the decree would be conclusive upon the widow when the estate is distributed.” (Estate of Cover, 188 Cal. 133 [204 Pac. 583]; Estate of Warner, 6 Cal. App. 361 [92 Pac. 191].)
III. The gifts of decedent to defendant should not have been cancelled in toto. Plaintiff frankly confesses that this question has “never been completely settled”. The husband, out of community funds, paid for a life insurance policy, the total proceeds of which were collected by defendant in the sum of $7,900. Also, he gave defendant a valuable yacht and miscellaneous movables and moneys. The judgment declares these gifts void, orders the yacht and insurance money restored to plaintiff and orders defendant to deliver plaintiff “any other moneys or properties which she received from decedent by way of ‘gifts’.” In this respect the court erred.
Decedent, a community partner, was absolute owner of one-half and had the management and control of all of the community estate. (Civ. Code, sec. 161a.) He was forbidden to make a gift of the personal property of the estate. (Civ. Code, sec. 172.) This inhibition was clearly intended to protect the wife’s share from the prodigality of a reckless or faith[553]less husband. This intent is further evidenced by the succeeding clause which forbids his sale of the community’s movables “without a valuable consideration”. But being the “present” owner of one-half of such movables (Civ. Code, sec. 161a) his gift thereof cannot be disturbed after his death. (Ballinger v. Ballinger, 9 Cal. (2d) 330 [70 Pac. (2d) 629] ; Trimble v. Trimble, supra.) The moneys invested in the life policy and in the yacht never lost their community character “during the lifetime of the husband and after his death the attempted gift thereof could be set aside to the extent of onelialf thereof”. (Ballinger v. Ballinger, supra.) “The only logical conclusion is that the wife’s right to assail the conveyance where, as here, the action was brought after the husband’s death, is limited to an undivided half of the property”. (Dargie v. Patterson, 176 Cal. 714 [169 Pac. 360].) ‘ ‘ There would thus seem to be no escape from the effect of our holding in the case of Dargie v. Patterson . . . and only set aside his conveyance as to the widow’s one-half interest therein.” (Lahaney v. Lahaney, 208 Cal. 323 [281 Pac. 67].) The husband’s deed to community property ... is valid and binding as to the husband’s one-half interest . . . and the deed should not, therefore, be decreed wholly void and should not be cancelled. (Pretzer v. Pretzer, 215 Cal. 659 [12 Pac. (2d) 429].)
Under the foregoing authorities and section 172a of the Civil Code, a husband’s gift of community property without his wife’s consent may be set aside in its entirety by the wife during her husband’s lifetime; but after his death, such gift may be cancelled to the extent of only one-half. (Trimble v. Trimble, supra; Matthews v. Hamburger, ante, p. 182 [97 Pac. (2d) 465].) It follows, therefore, that the gifts by decedent to defendant may now, after his death, be avoided as to one-half thereof, but no more.
IV. To the contention that the court erred in sustaining objections to questions asked and letters offered to prove plaintiff’s friendly relations with decedent and his brother in disproof of the fraud and duress claimed to have been perpetrated by them upon her, there are two answers, viz.: (1) such rulings were within the sound discretion of the trial court and (2) they were not prejudicial, if erroneous. A judgment will not be reversed for error which does not [554]prejudice the substantial rights of appellant. (2 Cal. Jur. 1022.)
In the action of Georgia McNally McNutt v. Louise McNutt, the judgment is amended by striking subdivisions 3 and 5 therefrom and inserting the following:
(3) That plaintiff have and recover of and from the defendant the sum of $4,500, being one-half of the moneys collected by the defendant upon a certain policy of insurance purchased by decedent from the New England Mutual Life Insurance Company.
(5) That plaintiff is entitled to the ownership and immediate possession of an undivided one-half of all other moneys and property received by defendant from decedent as gifts or as agent or trustee of decedent, and the plaintiff’s title to said one-half of said moneys and property is hereby quieted.
In the matter of the estate of William Slavens McNutt, the judgment is amended by adding to the end of said judgment, the following:
“And the said Georgia McNally McNutt as administratrix of the estate of the said William Slavens McNutt is entitled to the immediate possession of one-half of all moneys given by the said William Slavens McNutt to the said Louise McNutt in his lifetime not expended-by decedent and the said Louise McNutt for household expenses in his lifetime; and said administratrix is entitled to the immediate possession of an undivided one-half interest in and to all movable property received by said Louise McNutt from the said decedent as gift or otherwise.”
As amended, both judgments are affirmed.