Bialy v. Bank of America National Trust & Savings Ass'n

GRIFFIN, P. J.

This is an appeal from a judgment against the plaintiff, Pearl Bialy, and in favor of the defendants, the executor of the will of Charles F. Bialy, deceased, Marie B. Turner and Teresa Musselwhite, beneficiaries under the will of Charles F. Bialy, deceased.

This case was before this court in

Estate of Bialy,

169 Cal.App.2d 479 [337 P.2d 511], and reference thereto for a more detailed statement of the factual background is made. On reversal of the former judgment, a new trial was had. The action was consolidated with and tried as a part of the probate proceedings in the matter of the estate. All of the evidence introduced in the prior ease was again introduced in evidence and the record under the previous appeal was incorporated in the record under rule 11 (b), Rules on Appeal. In addition, other evidence was introduced on certain issues.

Plaintiff sought to have the executor declared constructive trustee of claimed community property and sought a declaratory judgment declaring that a property settlement agreement between plaintiff and Charles F. Bialy, deceased, was

[636]

void and that there was a valid and existent marriage between plaintiff and decedent at the time of his death.

At the second trial, evidence was introduced for the purpose of showing that at the time of the execution of the property settlement agreement, at the time of a certain declaratory relief action in the Pasadena branch of the Superior Court of Los Angeles County between the husband and wife, and at the time of an interlocutory decree of divorce, the decedent and the plaintiff were not dealing at arm’s length because the decedent at all times obstructed her will and denied her the opportunity of independent advice as to her rights and remedies. Evidence was presented to show that the plaintiff was, at the time of the execution of the property settlement agreement, at the time of the declaratory relief action, and at the time of the interlocutory decree of divorce, incompetent to manage her affairs and advise and cooperate with counsel. Plaintiff’s counsel, on a motion for a new trial, produced some evidence of an organic brain disorder caused by head injury to plaintiff in 1950. Just prior to the motion for a new trial, Christine Borus was appointed guardian