Sousa v. Freitas

• Decision Date: 20 August 1970
• Citation: 10 Cal.App.3d 660,89 Cal.Rptr. 485
• Court: California Court of Appeals Court of Appeals
• Parties: Maria Jacinto SOUSA, Plaintiff and Respondent, v. Catherine E. FREITAS, Bank of America NT&SA, as Executor of the Last Will and Testament of Manuel S. Freitas, Deceased, Defendants and Appellants. Civ. 26151.

Page 485

89 Cal.Rptr. 485

10 Cal.App.3d 660

Maria Jacinto SOUSA, Plaintiff and Respondent, v. Catherine E. FREITAS, Bank of America NT&SA, as Executor of the Last Will and Testament of Manuel S. Freitas, Deceased, Defendants and Appellants.

Civ. 26151.

Court of Appeal, First District, Division 2, California.

Aug. 20, 1970.

Rehearing Denied Sept. 18, 1970.

Hearing Denied Oct. 15, 1970.

Martin & Martin, Berkeley, J. Robert Ward, Berkeley, Francis T. Cornish, Alturas, for appellants.

Bernal, Rigney & Kilbourne, by George W. Kilbourne, Berkeley, for respondent.

DAVID, Associate Justice pro tem. ^*

Plaintiff Maria Jacinto de Sousa, now some 82 years old, illiterate resident of Santo Espirito, on the island of Santa Maria, Azores, Republic of Portugal, was found by the trial court to be the lawful wife of Manuel Sousa Freitas at the time of his death. Hence, she was awarded a decree imposing a constructive trust as to her marital interest on the properties of his estate, as against Catherine E. Freitas, found to be only his putative wife, and the Bank of America National Trust & Savings Association, as executor. The appellants contest such determinations.

Three years after his marriage at Santo Espirito in 1908 and establishing their residence there, followed by the birth of a son, Manuel Joaquin de Sousa emigrated to California, and for a short period remitted small sums to his family. In 1915, Sousa secured a decree from the Superior Court of Alameda County changing his name to Manuel S. Freitas. Though it would seem that a wife or a child is a person vitally concerned, the Code of Civil Procedure, sections 1275--1279, inclusive, makes no provision for personal service of such an application upon them unless as a 'near relative' when the father of a petitioner is not living (Code Civ.Proc., § 1276). Maria, his wife, did not know of this change of name until long after 1916.

In 1916, Manuel S. Freitas secured a divorce from Maria S. Freitas, meaning Maria Jacinto Sousa. Service was made by publication, the affidavit stating the defendant lived in 'Santa Maria, in the Republic of Portugal,' though Manuel well knew Santa Maria was only the island on which his wife lived in Santo Espirito at the home they occupied together; and that there, his wife was not and never had been known as Maria Sousa Freitas. There is evidence that he was not there known as Freitas, contrary to his declaration for change of name. Her testimony was that he was always known as Sousa there. ¹

Testifying in the trial court for appellants, Manuel's brother bore the name of Sousa; and appellants' exhibits in the form of letters from the son of Manuel and Maria to his father show the complete home address as Azenka, Santo Espirito, Santa Maria, Portugal.

By reason of the name change and incomplete address the trial court is supported in the finding that Maria 'had no notice or knowledge of said divorce action, was not served as a party to said action and was not a party to the judgment for divorce rendered in 1919. No other action was taken by either plaintiff or her said husband to terminate their marriage, and at all times until the date of death of said decedent, plaintiff believed that she was the legal wife of decedent; said plaintiff, not having been served with process in the aforementioned divorce action, had no opportunity to impose any valid and meritorious defense to any cause of action for divorce which the decedent could or might have brought during his lifetime.' The basis for Manuel's action was her alleged refusal to come to him in America; her claim is, that he did not send for her, nor provide the funds. This was a sufficient meritorious defense. (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 554, 305 P.2d 20.)

The trial court concluded that the plaintiff was not a party to nor bound by the change of name proceeding by her husband, and that the purported decree of divorce did not terminate her marriage because Manuel S. Freitas perpetrated extrinsic fraud on plaintiff by designating his defendant wife in the divorce proceedings as Maria S. Freitas. We have noted also the important variance in the address; but whether inadvertent or deliberate, the evidence would indicate that Maria might have received the summons had it been addressed in her proper name or in one which she recognized as her own or by which she was known in the community. (Cf. Rivieccio v. Bothan (1946) 27 Cal.2d 621, 624, 165 P.2d 677.)

The trial court necessarily concluded that the marriage ceremony between Manuel S. Freitas and Catherine E. Afflech was invalid. ²

But from December 29, 1919 until Manuel's death on August 4, 1962, Catherine E. Freitas lived with him in good faith, believing she was lawfully married to him. All of the property held by him at his death was the product of their joint efforts. Maria was not named in Manuel's will, which devised and bequeathed all of his estate to Catherine.

Therefore, we review the determinations of the trial court, relative to the trust imposed upon the estate, securing the rights therein declared in favor of plaintiff Maria Sousa.

These were (1) all of the property was community property of Manuel S. Freitas and Maria Jacinto Sousa, at the time of his death; (2) that as widow, Maria is the owner of an undivided one-half interest as a community interest in all of said real and personal property and income and proceeds thereof; (3) that as putative spouse Catherine is entitled to the other one-half of all such real and personal property with the proceeds and income thereof.

We are impelled to modify such findings and conclusions.

As against the other spouse or his heirs it is well settled that a woman who lives with a man as a wife in the belief a valid marriage exists is entitled to share in the property accumulated by them during its existence. The proportionate contribution of each is immaterial in this state, for the property is divided as community property would be upon dissolution of a valid marriage. (Vallera v. Vallera (1943) 21 Cal.2d 681, 683--684, 134 P.2d 761.)

The putative wife's share is not community property. But what is the situation when the legally recognized spouse steps forward to assert her community property interest in and to the same property, as against the putative spouse? There is scant authority. In Union Bank & Trust Co. v. Gordon (1953) 116 Cal.App.2d 681, 254 P.2d 644, the 'legal' spouse was estopped to assert her claim, since she herself had remarried in reliance upon the invalid divorce. In Estate of Ricci (1962) 201 Cal.App.2d 146, 19 Cal.Rptr. 739, where decedent apparently made no disposition of his community interest by will, the award of one-half to each of the legal and the putative spouses was affirmed. (There, the putative wife appealed, claiming the entire estate was the result of her joint efforts with decedent.) This was an equity decision, in the teeth of Probate Code section 201 under which the legal wife would have inherited his portion. The trial court followed this precedent.

But here, the decedent already had by will vested his half of the community property in the defendant putative spouse, a valid disposition under Probate Code sections 201 and 201.5.

By definition, the one-half of the community property so devised was his; and did not include the other half to which the competing claims apply. Stated another way, in accordance with the views expressed by Professor William E. Burby in Family Law for California Lawyers, pages 359--360 (quoted in Estate of Ricci, supra, 201 Cal.App.2d 146, at pp. 148--149, 19 Cal.Rptr. 739, at p. 740): "It seems obvious that one-half of the property in question belongs to the putative spouse. The other half belongs to the legal community (husband and legally recognized spouse) and should be distributed as any other community property under the same circumstances." Under this analysis by the recognized expert in community property law, Catherine is entitled to one-half of the property in her own right; plus the half of the community property decedent was entitled to devise, or another one-quarter of the whole; and the plaintiff is entitled to one-quarter of the whole estate only. (Blache v. Blache (1945) 69 Cal.App.2d 616, 624, 160 P.2d 136.) In effect, the innocent putative spouse was in partnership or a joint enterprise with her spouse, contributing her services--and in this case, her earnings--to the common enterprise. Thus, their accumulated property was held in effect in tenancy-in-common in equal shares. Upon death of the husband, only his half interest is considered as community property, to which the rights of the lawful spouse attach. ³ We do not undertake to state that this analysis would be equitable in all cases, but we are satisfied that it is under the facts here. ⁴

The findings and conclusions are modified to state: (1) one-half of the property was community property of Manuel S. Freitas and Maria Jacinto Sousa, at the time of his death; and Maria Jacinto Freitas is the owner of an undivided one-fourth interest as a community interest in all of said real and personal property and income and proceeds thereof; (2) that as a putative spouse, Catherine is entitled to one-half of all such real and personal property and income and proceeds thereof; and as legatee and devisee of the deceased to an additional one-fourth thereof, being his disposition of his half interest in the community property, under Probate Code, sections 201 and 201.5.

Having carefully read and considered the record, we hold that in all respects the findings of fact and conclusions of law are amply supported except as noted in this opinion.

Objections taken to the relief sought in this proceeding, debating whether this is a direct or collateral attack on the divorce decree, are answered by Bennett v. Hibernia Bank, supra, 47 Cal.2d 540, 558, 305 P.2d 20. This is a direct attack, permitting the introduction of extrinsic...