Toomey v. Toomey

SEAWELL, J.

Plaintiff appeals from a judgment entered for defendants after sustaining of a demurrer to her third amended complaint. The action is to annul a property settlement. The defendant husband has been adjudged incompetent, and hence the guardian of his estate is also a defendant. Plaintiff avers that her husband procured her consent to the property agreement by fraudulently misrepresenting the value of his property, and by threat of physical violence to her, and, further, that they became reconciled and resumed marital relations with the understanding that the agreement ‘ ‘ was fully abandoned and terminated and that plaintiff was restored to her former rights as a wife”.

[319]

The property settlement recited that the parties had been living separately for more than a year, and that all property owned or possessed by the husband was his separate property. It assigned to the wife a note which named the husband as payee, in the principal sum of $15,000, secured by deed of trust, and also transferred an automobile to her. It provided that the husband should pay $37.50 a month to the wife for the support of their minor daughter, and that from the $15,000 to be paid on the above note the wife should retain $4,000 in trust for said daughter, to be paid to her when she arrived at the age of twenty-two, with the right to apply said sum to the support of the child if needed. In consideration thereof, the wife relinquished her right to claim support for herself and said child, and all rights in her husband’s property, including the right to inherit, and dismissed an action for separate maintenance brought by her.

The trial court was correct in its view that the minor daughter should have been made a party to the action. The property agreement, beside providing for monthly payments of $37.50 for the support of said child, established a trust in her favor. The present action is brought to set aside said agreement, or, as to count two, to obtain an adjudication that the agreement was set aside by a reconciliation had with the understanding that plaintiff was restored to her property rights as a wife. The question as to the effect of said reconciliation on the rights of the child as beneficiary of said trust are necessarily involved, especially in view of the fact that plaintiff offers to restore to her husband the unexpended balance of the promissory note from which the trust fund for the benefit of the child was to be created. Minor children are necessary parties to an action to terminate a trust established in their favor by a property settlement.