Gianotti v. McDonald

DEVINE, J.

In this action upon a rejected creditor’s claim for reasonable value of services performed for the deceased, testimony of plaintiff’s husband was ruled inadmissible by the trial court under the provisions of the dead man statute (Code Civ. Proe., § 1880, subd. 3),

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an agreement signed by the husband on the date of the trial but prior to the proffered testimony, that the claim and all proceeds thereof are the separate property of the wife. Judgment was rendered in favor of defendant administratrix at the close of plaintiff’s case. There was some which was uncontradicted, by witnesses other than the husband, as to services performed by plaintiff to the decedent, but because of our decision, stated below, that the judgment must be reversed because of the major ruling in the case, that of the exclusion of testimony, we need not discuss the admitted evidence. Counsel for plaintiff did not make a offer of proof as to the husband’s expected testimony, but he did propose to make an offer of proof and the court, having made the ruling, stated that an offer of proof would do .no good. There was no dispute as to the genuineness of the husband’s signature, nor was the written agreement except as it is here, on the ground that it is a means of circumventing the statute.

We hold that an agreement between spouses, which is not for any other reason invalid, does not fail to relinquish effectively the community property interest of one spouse and remove that spouse from the category of persons in whose behalf an action is prosecuted, even if the relinquishment is devised for the purpose of avoiding the bar of Code of Civil Procedure section 1880, subdivision 3. Our reasons are as follows :

[746]

In

Roy

v.

Salisbury,

21 Cal.2d 176 [130 P.2d 706], the Supreme Court affirmed judgment for plaintiff, where the trial court had admitted the testimony of plaintiff’s wife in an action on a creditor’s claim, the wife having testified that she and her husband had made an agreement, after death of defendant executor’s testator, that future earnings of the husband were to be his separate property. At first glance, this ease would seem to be decisive of the question before us, but it is not quite so because in the main opinion, in which three justices participated, the holding was followed by the comment that, assuming that error had been committed, it was not prejudicial; the chief justice and an associate concurred specially on the ground that the admission of the evidence, even though erroneous, was not prejudicial; and two justices dissented upon the ground that to call the agreement a relinquishment rather than an assignment was to quibble over words, and that if the statute were to be amended or repealed, it should he by the Legislature and not by decision of the courts. However, in