Bengochea v. Bengochea

CRAIG, J.

The respondent was appointed administrator of the estate of Bias Bengochea, deceased, who was his brother, and who also was the husband of the appellant herein. Thereafter the latter petitioned the superior court for revocation of the letters of administration, and for appointment of herself as administratrix, alleging that the estate consisted of community property, and that as surviving wife of the deceased she was a competent and proper person for appointment, and had a prior right to act, in such capacity. Respondent admitted the marital relation between appellant and his intestate, but denied the existence of any community property or interest of appellant in said estate, alleging that on or about December 27, 1923, Mrs. Bengochea and her husband, owing to disputes between them, entered into a property settlement agreement in writing, a copy of which was appended to the answer as an exhibit, “in settlement, adjustment and in compromise of all property questions and rights,” each agreeing “to execute and acknowledge any and all deeds or instruments of release or conveyance in order to enable such other to sell, convey or otherwise dispose of his or her own real property, free from any apparent right of interest therein.”

[649]

Appellant filed a reply, denying the allegations, and the contract last mentioned, and alleged that prior to December 27, 1923, she and her husband owned a one-half interest in certain real property and a hotel maintained thereon, of which Paul Bengochea and his wife also owned one-half. She denied the existence of any dispute between the decedent and herself, but alleged that owing to differences between herself and Paul Bengochea, the latter agreed to purchase the share of herself and husband. She further alleged that she was unable to read the English language sufficiently to understand the purport of written instruments; that Paul Bengochea represented the property settlement contract to be a bill of sale, and that as a kinsman, partner, and co-owner of the common property, she believed and relied upon his representations, and therefore signed the same; that such representations were false, were known to Paul Bengochea to be false, and that he knew that she and her husband believed and relied upon them as being true, and thus obtained their signature, but that they would not have signed except for respondent’s false and fraudulent representations.