Flanagan v. Capital National Bank

LANGDON, J.

This action was brought by plaintiff to cancel a so-called “waiver” of community property rights in the estate of James Flanagan.

James Flanagan made his will on March 29, 1929. By its terms he left considerable real and personal property to plaintiff. The remainder of his estate he left to a brother, a sister and a niece. At the time of its execution, plaintiff signed an instrument reciting that she was the wife of the testator, that she had read the will, and that “in consideration of the provisions made in and by said will” she elected to accept its provisions and conditions, including the disposition of the “community property”, and

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that she waived all claim of said community property. Upon the death of the testator the will was admitted to pro-hate. Thereafter this action was commenced by plaintiff against the executor and the residuary beneficiaries.. The trial court granted defendants’ motion for a nonsuit.

We think that the trial court’s action is fully sustained by the record. The “waiver” was in fact a contract, by the terms of which plaintiff accepted certain devises and bequests under the will in lieu of any rights she might have in any community property. Such an agreement is clearly supported by consideration and is binding upon the plaintiff, irrespective of any element of ■ estoppel arising’ from the testator’s change of position in reliance upon the representation contained in the instrument. (See

Estate of Whitney,

171 Cal. 750 [154 Pac. 855];

Estate of Wyss,

112 Cal. App. 487 [297 Pac. 100].)

However, there is no need to rest this decision on the validity of that instrument, for the facts show that plaintiff was not the wife of the decedent and her claim of community property rights was clearly unfounded. It is admitted by plaintiff that she never was legally married to the decedent, but it is urged that she has the status of a putative or

de facto

wife, and is entitled as such to claim a share in the property on equitable grounds, under the rule laid down in several decisions in this state. (See