Tassi v. Tassi

• Decision Date: 21 May 1958
• Citation: 160 Cal.App.2d 680,325 P.2d 872
• Court: California Court of Appeals Court of Appeals
• Parties: Marjorie B. TASSI, Plaintiff, Appellant and Respondent, v. Edwin TASSI, also known as Edwin G. Tassi, and Alma Tassi, Defendants, Appellants and Respondents, Giacomo Tassi, Bank of America National Trust & Savings Association, as executor of the Estate of Harold Paul Tassi, deceased, Bank of America National Trust & Savings Association, Central Bank, Crocker First National Bank of San Francisco, American Trust Company, Oakland Bank of Commerce, The Hibernia Bank, Defendants and Respondents. Civ. 17358.

Page 872

325 P.2d 872

160 Cal.App.2d 680

Marjorie B. TASSI, Plaintiff, Appellant and Respondent, v. Edwin TASSI, also known as Edwin G. Tassi, and Alma Tassi, Defendants, Appellants and Respondents Giacomo Tassi, Bank of America National Trust & Savings Association, as executor of the Estate of Harold Paul Tassi, deceased, Bank of America National Trust & Savings Association, Central Bank, Crocker First National Bank of San Francisco, American Trust Company, Oakland Bank of Commerce, The Hibernia Bank, Defendants and Respondents.

Civ. 17358.

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

May 21, 1958.

Rehearing Denied June 20, 1958.

Wallace B. Colthurst, Orlando J. Bowman, Oakland, for appellant and respondent Marjorie Tassi.

Stark & Champlin, Franklin C. Stark, John F. Wells, Oakland, for respondents and appellants.

DOOLING, Justice.

Plaintiff Marjorie Tassi brought this action upon the death of her husband to recover from defendants one-half of various properties on the ground that these properties were gifts of coummunity property made by her husband without her consent. She appeals from the judgment which held that 73% of the property was her husband's separate property at the time of the transfers. Defendants Edwin and Alma Tassi appeal from that portion of the judgment which held that plaintiff was not required 'to elect to take either the said three trustee accounts specified for her or her one-half interest in the total of the community property * * *'

Plaintiff Marjorie and decedent Harold Tassi were married on January 31, 1942 and lived together until Harold died on February 19, 1953. At the time of the marriage decedent owned a wholesale meat business which he had purchased in 1938 for $400 or $500. The book value of the business at the time of Harold's marriage was $14,519.95.

After the marriage plaintiff continued to work for about ten months, and thereafter worked part time in her husband's business. The company account books contained an entry in 1943 indicating an additional investment at that time of $27,615.01 but there was no direct evidence as to the source of those funds. Income tax returns reported by decedent indicated that the business earned $419,993.17 during the eleven years of marriage. The evidence showed that plaintiff's husband withdrew from the business $447,805.75 from the date of marriage until his death.

During the marriage in 1947 and 1948 decedent opened seven trustee accounts, three for his wife, totaling $73,962.49, and four for his brother totaling $122,514.26. Three days before the decedent's death, Edwin wrote himself a $20,000 check on decedent's bank account. In 1951 decedent gave to Edwin five $1,000 U. S. Bearer Bonds, and in 1946 purchased for him 300 shares of corporate stock. All of these transactions were without appellant's knowledge or consent.

There was evidence that decedent made various investments in securities and of transferring of sums between bank accounts.

The trial court found '(t)hat the source of the funds which set up the accounts and purchased the securities and bonds * * * was the earnings and profits of a wholesale meat business known as Associated Meat Company.' It found that the decedent set up the trustee bank accounts with the intention of passing the money to the beneficiaries with a minimum of expense and delay in the event of his death. The court found further that the meat company was at all times decedent's separate property and that the earnings and profits from the business 'are allocable 27% to the community property of decedent and plaintiff and 73% to the separate property of decedent.' It was also found that the transfers to defendant 'were the community property of decedent and plaintiff to the extent of 27% thereof * * *'

Defendants' Appeal.

The defendants urge on appeal a single question, that as to the seven trustee bank accounts, three created for the plaintiff wife and four for the defendant brother, plaintiff was put to an election either to take under the three trustee accounts created for her and waive her claim to a community property interest in the four trustee accounts created for the brother, or in the alternative to abandon her claim to the whole of the three trustee accounts created for her and claim only her community interest in all seven accounts.

The essentials for the application of the doctrine of election are thus stated in 2 Pomeroy's Equity Jurisprudence, 5th Edition, section 462, page 332: 'The essential facts presenting an occasion for the doctrine of election are: A gives to B property belonging to C, and by the same instrument gives to C other property belonging to himself. The equitable doctrine upon these facts, briefly, is: C has two alternatives: 1. He may elect to take under the instrument, and to carry out all its provisions; he will then take A's property, which was given to him, and B will take C's property. 2. He may elect against the instrument. In that case * * * he must surrender * * * so much of such benefits as may be necessary to compensate B for the disappointment he has suffered by C's election to take against the instrument.'

As applied to wills the doctrine was thus stated in Williams v. Williams, 170 Cal. 625, 627-628, 151 P. 10, 11: 'Where property to which one may have a valid claim * * * is disposed of by will in violation of those rights, while at the same time other property to which the claimant would not be entitled, is devised to that claimant, an election is forced. The claimant cannot at the same time, take the benefits under the will and repudiate the losses. [He] must either accept the terms of the will in toto, or reject them in toto.'

While the doctrine of election has been most frequently applied to wills, it is also applicable to any instrument creating property rights. Mazman v. Brown, 12 Cal.App.2d 272, 55 P.2d 539; 2 Pomeroy's Equity Jurisprudence, 5th Ed., § 470, p. 347.

The first fact to be noted in determining whether the doctrine of election is applicable to the trustee accounts in question is that each account was not only separately created, but each account was created at a different date. The accounts for the benefit of the wife were respectively created on April 18, 1945; September 24, 1947; and September 21, 1950. Those for the benefit of the brother were opened on September 25, 1947; August 27, 1948; February 6, 1948; and September 12, 1951. The signature cards by which the several accounts are created make no reference of any sort one to the other. Each, so far as appears on the face of the document creating it, is an entirely independent transaction from any of the others. It is stated by Pomeroy in the quotation above set out that the doctrine of election applies where 'A gives to B property belonging to C, and by the same instrument gives to C other property belonging to himself.' (Emphasis ours.)

In none of the cases cited by defendants-appellants was an election compelled where the inconsistent rights were created by separate documents none of which on its face makes any reference to the others. In re Estate of Ettlinger, 73 Cal.App.2d 967, 167 P.2d 738, the claim was made that the will, which made no mention of two insurance policies in favor of testator's daughters, and the two policies must be construed together so as to compel the widow to elect between taking under the will and waiving her community interest in the policies, or waiving her rights under the will and taking only her community interest. We said at pages 970-971 of 73 Cal.App.2d, at page 739 of 167 P.2d:

'Respondents further argue that the will and the policies must be construed together to put appellant to an election. No authority is cited to support this argument and we have found none. The case is not similar to Mazman v. Brown, 12 Cal.App.2d 272, 55 P.2d 539, where the widow was made a beneficiary of the policy itself and was held by virtue of that fact to be put to her election to take under the policy or to claim her community interest and renounce her rights as beneficiary. Appellant is not here claiming any property disposed of, or even referred to, in the will, and her claim is not inconsistent with any of the will's provisions. If she is put to an election here then every widow to whom a husband left any separater property by will, where he also left a life insurance policy paid for in whole or in part with community founds with someone other than the wife named as beneficiary, would be put to a similar election.'

If defendants-appellants are correct in their contention that the several accounts must be construed together to put the wife to an election no good reason appears why the same rule would not apply to separate deeds, separate life insurance policies or other separate transactions of a similar character, by some of which the wife benefited and by others of which she was deprived of community property rights. To so hold would open up a host of future controversies the uncertainties of which might perplex the courts for years and leave the respective rights of claimants under separate instruments, none of which on their faces made any reference to the others, in a state of doubt and confusion. The rule as previously applied, limiting the doctrine of election to those cases where the necessity of election appears from the face of the instrument under which the claimant takes, is simple of application. In the absence of controlling authority we are satisfied that it should not be extended beyond that point.

Defendants-appellants, over objection, were permitted to introduce evidence of oral declarations of the decedent that the several bank accounts were all a part of a consistent scheme to dispose of the funds therein upon death without necessity of administration. It was thus sought by evidence of these oral declarations to prove dehors the instruments creating the accounts that it was the intention of the...