Kunakoff v. Woods

• Citation: 332 P.2d 773,166 Cal.App.2d 59
• Court: California Court of Appeals
• Decision Date: 11 December 1958
• Parties: Manya M. KUNAKOFF and Mike D. Kunakoff, Plaintiffs, v. Bessie WOODS, Leon D. Woods and Joe F. Woods, individually, and doing business under the fictitious firm name and style of Progressive Electric Works, Progressive Electric Works, a partnership, James B. Raeuber, James van Welpe, James Smith (sued as John Doe), Jane Doe, and Richard Roe, a corporation, Defendants, Manya M. KUNAKOFF, Plaintiff and Appellant. v. Bessie WOODS, Leon D. Woods and Joe F. Woods, individually, and doing business under the fictitious firm name and style of Progressive Electric Works, and Progressive Electric Works, a partnership, Defendants and Respondents. Civ. 23028.

Page 773

332 P.2d 773

166 Cal.App.2d 59

Manya M. KUNAKOFF and Mike D. Kunakoff, Plaintiffs, v. Bessie WOODS, Leon D. Woods and Joe F. Woods, individually, and doing business under the fictitious firm name and style of Progressive Electric Works, Progressive Electric Works, a partnership, James B. Raeuber, James van Welpe, James Smith (sued as John Doe), Jane Doe, and Richard Roe, a corporation, Defendants, Manya M. KUNAKOFF, Plaintiff and Appellant. v. Bessie WOODS, Leon D. Woods and Joe F. Woods, individually, and doing business under the fictitious firm name and style of Progressive Electric Works, and Progressive Electric Works, a partnership, Defendants and Respondents.

Civ. 23028.

District Court of Appeal, Second District, Division 3, California.

Dec. 11, 1958.

Rehearing Denied Jan. 8, 1959.

Hearing Denied Feb. 4, 1959.

Betts, Ely & Loomis and William C. Stein, Los Angeles, for appellant.

Chase, Rotchford, Downen & Drukker, Donn B. Downen, Jr., and Otto M. Kaus, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by plaintiff Manya M. Kunakoff from a judgment of dismissal in an action for wrongful death.

At the commencement of the trial the court sustained defendants' objection to the introduction of any evidence on behalf of plaintiff Manya M. Kunakoff, referred to as plaintiff, and granted their motion to dismiss the action as to her. The objection was sustained and the action was dismissed on the ground it appeared from the complaint, considered with certain affidavits, that plaintiff is not an heir of the deceased and is not therefore entitled to maintain the action.

The facts are undisputed. On May 24, 1924 Manya participated in a marriage ceremony with David Kunakoff in a church of the Molokan faith of which they were members. The ceremony was performed by a regular minister of that faith. Manya was 18 and David 19 years of age at the time. No license was obtained, and no other ceremony or act was done to validate the marriage. The minister who performed the ceremony did not make or file a record of the marriage. ¹ From the time of the ceremony until David's death Manya and David lived publicly and avowedly as husband and wife. One child, plaintiff Mike D. Kunakoff, now 30 years of age, was born of the union. David was killed on June 11, 1955, allegedly as a proximate result of the negligence of defendants.

At the hearing of the motion to dismiss it was stipulated that Manya was a putative wife; that she did not live with David prior to the religious ceremony; that the relation was not meretricious; and that Manya lived with David from the time of the ceremony until his death in good faith and the honest belief she was his legal wife.

Section 377 of the Code of Civil Procedure, in pertinent part, provides:

'When the death of a person * * * is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.'

Plaintiff contends she is an heir of David within the meaning of section 377. Defendants say a putative wife is not an heir within the meaning of the section.

An action for damages for wrongful death was unknown at common law. It is wholly statutory in origin and it must stand or fall by the terms of the statute. Norman v. Murphy, 124 Cal.App.2d 95, 97, 268 P.2d 178. The purpose of section 377 is to compensate heirs for the pecuniary loss suffered by them by reason of the loss of their relatives by death. If the deceased has no heirs, the statute does not apply. Estate of Bright v. Western Air Lines, 104 Cal.App.2d 827, 829, 232 P.2d 523. '[T]he word [heirs] is used in its common-law sense, and denotes those who are capable of inheriting from the deceased person generally, and without the limitation resulting from statutes relating to the distribution of community property.' Redfield v. Oakland Consolidated St. Ry. Co., 110 Cal. 277, 290, 42 P. 822, 825, 1063; Buckley v. Chadwick, 45 Cal.2d 183, 192, 288 P.2d 12, 289 P.2d 242; In re Estate of Riccomi, 185 Cal. 458, 462, 197 P. 97, 14 A.L.R. 509; Follansbee v. Benzenberg, 122 Cal.App.2d 466, 474, 265 P.2d 183, 42 A.L.R.2d 832; Pacific Employers Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 143 Cal.App.2d 646, 649, 299 P.2d 928; Fiske v. Wilkie, 67 Cal.App.2d 440, 444, 154 P.2d 725.

'The 'heirs' of a person are those whom the law appoints to succeed to his estate [in California, estate of any kind] in case he dies without disposing of it by will.' Hochstein v. Berghauser, 123 Cal. 681, 687, 56 P. 547, 549; In re Estate of Watts, 179 Cal. 20, 22, 175 P. 415; In re Estate of Wilson, 184 Cal. 63, 67, 193 P. 581. "The word 'heirs' * * * means the persons who would be entitled to succeed at his death to his estate in case of intestacy, by virtue of our statutes relative to succession." Dickey v. Walrond, 200 Cal. 335, 339, 253 P. 706, 708; In re Estate of Riccomi, 185 Cal. 458, 462, 197 P. 97, 14 A.L.R. 509; Fiske v. Wilkie, 67 Cal.App.2d 440, 444, 154 P.2d 725; In re Estate of Baird, 135 Cal.App.2d 333, 337, 287 P.2d 365. Probate Code sections 200-231 are the source in every case for a designation of the persons who meet the description of heirs. Dickey v. Walrond, 200 Cal. 335, 339, 253 P. 706.

'Succession is the acquisition of title to the property of one who dies without disposing of it by will.' Prob.Code, § 200. On the death of the husband, in the absence of testamentary disposition, the community property belongs to the surviving spouse, with exceptions not relevant here. Prob.Code, § 201. Generically, the term 'spouse' may include a putative wife. 41 C.J.S. Husband and Wife § 3, p. 393.

A putative marriage is a matrimonial union solemnized in due form and celebrated in good faith by at least one of the parties but which, by reason of some legal infirmity, is either void or voidable. In re Estate of Foy, 109 Cal.App.2d 329, 331, 240 P.2d 685; Union Bank & Trust Co. v. Gordon, 116 Cal.App.2d 681, 689, 254 P.2d 644; 32 Cal.Jur.2d 355, § 27.

'It is the law in this state that on dissolution of a putative marriage the property which the defacto spouses have acquired as a result of their joint efforts is to be treated as though it was the accumulation of a valid marriage.' Union Bank & Trust Co. v. Gordon, 116 Cal.App.2d 681, 689, 254 P.2d 644, 649; Macchi v. La Rocca, 54 Cal.App. 98, 100, 201 P. 143; Santos v. Santos, 32 Cal.App.2d 62, 65, 89 P.2d 164; Lazzarevich v. Lazzarevich, 88 Cal.App.2d 708, 714, 200 P.2d 49; 35 Am.Jur. 215, § 52; 11 Am.Jur. 180, § 8. The proportionate contribution of each party to the property is immaterial in this state. Vallera v. Vallera, 21 Cal.2d 681, 683, 134 P.2d 761.

Professor Burby ² says: 'Property acquired during the continuance of a putative marriage constitutes community property and should be distributed as such if a putative spouse is involved. In some of the older cases there are statements that such property cannot be considered community property because community property is an incident of only a legally recognized marriage. However, it is further stated that the property should be distributed the same as it would be if it were community property. The more recent cases have discarded this 'double talk' and follow the civil law rule respecting putative marriages.' (Family Law for California Lawyers, pp. 357, 358.)

'The property which the de facto spouses have acquired as the result of their joint efforts is treated as though it were the accumulation of a valid marriage. Thus, if the survivor of a valid, ceremonial marriage would be entitled to take all the community estate on its disoolution, then by parity of reasoning the wife should inherit the entire estate of a putative union on the death of her putative husband intestate.' (32 Cal.Jur.2d 355, § 27.)

In re Estate of Krone, 83 Cal.App.2d 766, 189 P.2d 741, was a probate proceeding. The deceased left surviving him his putative wife, Fanny, and three children by a former marriage. The question arose when the estate was ready for closing. The three children filed a claim of interest in the probate proceeding declaring that the property of the estate was separate property of the decedent, that Fanny was not the lawful wife of the decedent, and demanded that the estate be distributed to them. Fanny filed a claim of interest in which she alleged she was the sole surviving heir of the decedent; that she married him in April 1934, and continuously lived with him as his wife to the date of his decease; that during such period as a result of their joint efforts all the personal property comprising the estate of decedent was accumulated; that at the time of such marriage she believed in good faith that she was the lawfully wedded wife of decedent. The probate court found that at the time of the marriage neither had any property; that as a result of their joint efforts the parties accumulated personal property of the value of $16,412.51; that Fanny was a putative wife; that the decedent and Fanny were equal partners and the property of the parties was partnership property. The probate court concluded and adjudged that the property acquired by the decedent and Fanny was partnership property; that they were owners as equal partners thereof; that the three children were the only heirs at law of decedent; and that the estate of the decedent was vested in them subject to administration.

After an exhaustive review of the cases in this state the court stated (83 Cal.App.2d 769, 189 P.2d 743):

'From the foregoing review it appears that the preponderant holdings of the appellate courts coincide with the view that upon the dissolution of a putative marriage by decree of annulment or by death the wife is to take the same share to which she would have been entitled as a legal spouse. However, none of the authorities reviewed involved a consideration of the statute subsequently enacted whereby the surviving spouse of a valid marriage...