26 P.2d 482 | Cal. | 1933
Lead Opinion
THE COURT.
This cause was ordered transferred from the District Court of Appeal to this court for further consideration. After giving the opinion of that court considerable study, we are of the opinion that it correctly disposes of the questions presented on this appeal, and we, therefore, adopt it as the opinion of this court. It was prepared by Mr. Justice Knight, concurred in by Presiding Justice Tyler and Justice Cashin, and is as follows:
"Charles R. Fancher and appellant were married during the year 1918, and lived together thereafter until June 25, 1931, at which time Fancher died intestate, leaving surviving him as heirs at law appellant and two minor children, aged ten and twelve years respectively. During the marriage and between April, 1925, and April, 1929, inclusive, on Fancher's application, the plaintiff insurance company issued to him five policies of life insurance, aggregating $48,000, wherein he designated the children as beneficiaries. All of the premiums were paid out of community assets, and for that reason upon Fancher's death conflicting claims arose between appellant and the guardian of the children as to the proceeds of said policies, each claiming the full amount *353
thereof. Thereupon the insurance company instituted this action in interpleader to have the rights of the respective claimants judicially determined. In deciding the matter the trial court followed the decision rendered in New York Life Ins. Co. v.Bank of Italy,
"As shown by a number of later cases, among them being UnionMutual Life Ins. Co. v. Broderick,
"Section 1401 of the Civil Code as amended in 1923, relied upon by appellant, read as follows: `Upon the death of either husband or wife, one-half of the community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse . . .' As appears from the decisions construing said amended section, two changes were brought about thereby: First, the wife was given the right, equal with that of the husband, to make testamentary disposition of the one-half of the community property to which she would be entitled if she survived the husband, a right which she did not before possess; and secondly, it changed the rule of inheritance by substituting the surviving wife for the husband's descendants as successor to his half of the community property in case he made no disposition thereof up to the time of his death. (Estate of Phillips,
"Appellant's position in this matter doubtless finds support in the last sentence of section 24 of the treatise on community property in the 1930 supplement to California Jurisprudence; also in a single paragraph in the decision in Modern Woodmen ofAmerica v. Gray,
Dissenting Opinion
I dissent, for the reasons expressed in my dissent in Trimble
v. Trimble, S.F. No. 14601, this day filed (ante, p. 340 [