Reid v. Asanovic

[633]

DRAPER, P. J.

The trial court impressed a constructive trust upon property acquired by defendant Angelette Asanovic from her deceased husband, Peter. She appeals.

Peter Asanovic and his first wife, Jennie, signed a property settlement agreement in 1939. It provided, in part, that Peter should execute a will leaving to their one child Mary (plaintiff herein), “all the estate . . . owned by (him) at the time of his death,” if no children other than she survived him. If he left other children, his property was to be left to Mary and to " any other child or children of his living at the time of his death, share and share alike.” The agreement was approved by and incorporated in the interlocutory decree of divorce entered two weeks after date of the agreement, and like provision was made in the final decree in 1940.

Jennie died in 1942. In 1944, Peter married defendant, Angelette. They had one child, defendant Claire, born in 1945. Angelette had no property at the time of the marriage and no earnings after marriage. Peter’s sole (and successful) occupation after his marriage was the management of his separate property, including that acquired under the settlement agreement. Thus the holdings of Peter and Angelette at his death are traceable to his separate property at the date of his marriage to Angelette, including that vested in him by the 1939 agreement. After 1944, he deeded two parcels to Angelette, and placed most of his remaining property in joint tenancy of himself and Angelette. He never made the will required by the property settlement agreement. At his death in 1958, he left a will naming Angelette as sole beneficiary, and specifically disinheriting plaintiff Mary.

Mary brought this action, asserting that Claire had rights equal to her own. Claire refused to join in the action against her mother, and was therefore made a defendant.

The trial court found that the two deeds to Angelette were reasonable gifts, and awarded those properties to her. The remaining property, principally that held in joint tenancy, was found to be a reasonable gift to Angelette as to a half interest, but as to the remaining half to have been given to Angelette “with intent to defeat the spirit and purpose” of the property settlement agreement. A trust for Mary and Claire, to the extent of a one-fourth interest each, was impressed upon these properties.