Weinstein v. Moers

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff, Clara Weinstein, in an action to establish and enforce a trust.

Prior to August 13, 1924, the defendant, Albert A. Moers, and Theresa W. Moers, husband and wife, conducted an art and antique store on West Seventh Street in the city of Los Angeles under the name of “Moers, Inc.” During the existence of the marriage relation and on or about August 4, 1921, they executed mutually reciprocal wills, pursuant to agreement, by which each devised and bequeathed to the other all of the property .belonging to them at the time of their respective deaths. Domestic difficulties arose and in August, 1922, the wife commenced an action

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for divorce against the husband, which action was subsequently dismissed. On May 23, 1924, the husband instituted an action for divorce against the wife and the cause was set down to be heard on August 7, 1924. Immediately prior to the hearing of the cause the parties thereto executed an agreement of property settlement by the terms of which all rights of the parties as to their separate and community properties were provided for and settled. Among other things, it was provided therein that merchandise and personal property in the store to the value of five thousand dollars were to be delivered to the husband, together with fourteen thousand five hundred dollars in cash. It was further agreed “that any and all property, whether real, personal or mixed, standing in the name of either party, shall be and it is hereby specified as the separate property of the party in whose name said property stands and each party hereto waives any right, title, claim or interest in or to any property now standing in the name of the other, or which may be hereafter acquired by the other.” It was further agreed “that said payment and agreement is hereby accepted by the parties hereto in full settlement of any property rights now, or which may hereafter accrue in favor of either of the parties hereto out of said marriage relation, with the right to inherit, whether said claim is based upon the community rights now existing or which may hereafter be created. After the execution of the property settlement agreement and on the same day an interlocutory decree of divorce was granted to the husband. Thereafter an escrow was opened in a local bank for the purpose of carrying out certain of the terms of the agreement. The wife thereupon paid into the escrow the sum of fourteen thousand five hundred dollars for the benefit of the husband. On August 13, 1924, just a week before the date set for the closing of the escrow, Theresa W. Moers died as the result of a gunshot wound inflicted upon her the night before. (See People v.