Meyers v. Guardian Life Insurance Co.

MoGOMB, J.

This is an appeal by plaintiff from a judgment in favor of defendant after trial by the court without a jury.

Viewing the evidence most favorable to the defendant, the facts are:

In 1886 plaintiff and Robert Meyers were married in New York City. They separated in 1900 and in 1910 Robert Meyers obtained a divorce from plaintiff. In 1932 at plaintiff’s instance this decree was vacated. Immediately after obtaining the divorce, Robert Meyers married Roseabel Meyers. Thereafter in 1913 they came to California and lived here as husband and wife continuously until his death in 1931.

Defendant issued two life insurance policies with Robert Meyers as the assured and Roseabel Meyers as the beneficiary, one in 1923 in the amount of $25,000 and the other in 1928

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in the amount of $100,000. The premiums on these policies were paid with community funds of plaintiff and Robert. Meyers. Subsequent to assured’s death the named beneficiary’s claim under the policies was settled with her.

October 16, 1931, plaintiff made demand upon defendant that it pay one-half of the face value of each policy to her, claiming that the same constituted her community interest in them. The present action was commenced November 8, 1934.

This is the sole question presented for determination :

Is a suit by the surviving spouse to enforce her community rights in a life insurance policy, wherein her husband is named as asssured, and the premiums on which have been paid from community funds, based on a contract in writing, thus making applicable the four-year statute of limitations? (Subd. 1, sec. 337, Code Civ. Proc.)

This question must be answered in the negative. A suit is not upon a contract in writing unless the obligation which it is sought to enforce is found in the written agreement.

(McCarthy

v.

Mt. Tecarte L. & W. Co.,

1ll Cal. 328, 340 [43 Pac. 956].) Mr. Justice McFarland in