# Grimm v. Grimm > California Supreme Court · March 27, 1945 · 26 Cal. 2d 173 URL: https://www.frixlaw.com/law-library/cases/9552510 ## Case - **Full name:** CLARA GRIMM, Respondent, v. WALTER E. GRIMM Et Al., as Administrators, Etc., Appellants - **Court:** California Supreme Court - **Decided:** March 27, 1945 - **Citations:** 26 Cal. 2d 173; 157 P.2d 841; 1945 Cal. LEXIS 144 - **Precedential status:** Published - **Opinion:** Dissent by Schauer - **Judges:** Schauer, Traynor - **Cited by:** 80 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9552510 ## Opinion text SCHAUER, J. I dissent. The majority opinion takes from the estate of decedent and gives to plaintiff property (“avails” of a specifically described life insurance policy) in which the latter has no right, title, or interest. By formal written agreement for a valuable consideration the plaintiff conveyed to the decedent all of her interest in the avails of the policy. The exact language used by the parties is: “second party [plaintiff] hereby transfers, releases and relinquishes to first party [decedent] all interest in and to said policy of insurance and the premiums paid thereunder and the avails thereof.” (Italics added.) We cannot give effect to the words “second party hereby transfers ... to first party all interest in and to said policy . . . and the avails thereof” and still permit plaintiff to recover. We have no right to give no effect to those words. They are clear and definite in meaning. The word “transfer” means “to convey from one . . . person ... to another.” (Webster’s New Int. Dict. (2d ed.).) The majority opinion does not assert, and the evidence does not suggest, that the decedent ever reconveyed to plaintiff any interest in, to, or under the policy, or its “avails.” I think that such majority opinion fails to reckon squarely with the essential problem when it declares that *181 “Plaintiff’s relinquishment of her interest in the ‘avails’ of the policy does not show an intention to give up more than her community rights, which included a share in the proceeds of the policy.” (Italics added.) The instrument effects an out and out conveyance of all interest in the avails of the policy. An actual conveyance is more than a relinquishment. Neither do I find convincing the argument in the opinion based on the statement that “The intention of the spouses to exclude from the agreement rights that might accrue to plaintiff at the death of the husband as a result of his bounty is indicated by the provision of the agreement in which plaintiff waived all rights of inheritance in her husband’s estate ‘except in such manner and upon such terms as may be provided in any will and/or codicil thereto of first party in effect at the date of his death. ’ ” The foregoing exception is specific and exclusive. It excepts from operation of the relinquishment of plaintiff’s rights of inheritance from the decedent only such rights as are encompassed in the language “in such manner and upon such terms as may be provided in any will and/or codicil thereto of first party in effect at the date of his death.” It seems almost trite to have to point out that the asserted right claimed in this action by plaintiff is not one which is evidenced or created by “terms . . . provided in any will and/or codicil thereto of first party.” It is an established rule of construction that a proviso or exception is used to limit and qualify that which immediately precedes it and to expressly negative a construction or effect that would prevail in the absence of the proviso or exception; that which is specifically excepted from the operation of the general clause would, in the absence of the proviso or exception, have been included within the operation of such general clause. (17 C.J.S. § 343, pp. 796-797 [rule as to contracts] ; see, also, People ex rel. Happell v. Sischo (1943), 23 Cal.2d 478, 493 [ 144 P.2d 785 , 150 A.L.R. 1431 ] [rule of statutory construction].) Furthermore, the express enumeration of exceptions indicates the exclusion of any other exceptions. (17 C.J.S. § 343, p. 797 [rule as to contracts]; see, also, Belloc v. Rogers (1858), 9 Cal. 123, 128 ; Tynan v. Walker (1869), 35 Cal. 634, 639 [95 Am.Dec. 152 ] Rothschild v. Superior Court (1930), 109 Cal.App. 345, 348 [ 293 P. 106 ] ; C.I.T. Corp. v. Biltmore Garage (1934), 3 Cal.App.2d Supp. 757, 761 [ 36 P.2d 247 ]; In re De Neef (1941), 42 Cal.App. *182 2d 691, 694 [109 P,2d 741] [rule of statutory construction].) There is no presumption in favor of plaintiff. She had sued Mr. Grimm, the decedent, for divorce. She contracted with him freely, upon an equal footing. The declaration in the opinion that “Since the position of a beneficiary named in a life insurance policy as an object of the bounty of the insured is similar to that of a beneficiary of a will [citation] plaintiff no more relinquished the right to take as beneficiary of her husband’s insurance policy than she relinquished the right to take as beneficiary of his will” seems to me to be a non sequitur. The exception clause expressly reserves to plaintiff the right to take as beneficiary under a will or codicil thereto but it does not reserve or create the right to succeed otherwise to avails of the insurance policy, which policy and the “avails thereof” plaintiff had conveyed to decedent for a valuable consideration. The transfer in writing to decedent of all of plaintiff’s interest in and to the policy and its “avails” immediately divested plaintiff of all her interest in and to such policy and its “avails” and vested all of such interest in decedent as his separate property. There was no necessity for him to change the policy-designated beneficiary; he owned and there was vested in him all of such beneficiary’s interest. She could thereafter acquire no interest in or right to the policy proceeds except by affirmative and competent action of the decedent to that end. He could have made a will or codicil bequeathing such avails to plaintiff but he did not do so. He chose to keep such policy and its avails for himself and his estate. His estate is now entitled to have them free of any claim of plaintiff, for which she has long since received fair compensation and of which she divested herself by voluntary action. The provision in the agreement by which plaintiff bound herself to execute upon Mr. Grimm’s request any instrument necessary or convenient to change the beneficiary does not, in my view, make it apparent, as asserted in the opinion, “that there was no present renunciation of the wife as beneficiary” in any material sense. Since Mr. Grimm had bought, paid for, and received a conveyance of plaintiff’s entire interest there is apparent no essential reason why he should have desired or thought that he needed to have the policy itself amended to show a change in the designated beneficiary until and *183 unless he wanted to name some third person as beneficiary. To accomplish that end he might well have needed plaintiff’s execution of a proper document and, therefore, an appropriate covenant to that end was included in the agreement, but insofar as Mr. Grimm’s rights against the plaintiff were concerned, if he wanted the avails of the policy to go to his estate, he already, in the agreement, had everything which he could reasonably anticipate would be needed. Lastly, I find no substantial ground for distinguishing this case from our opinion in Sullivan v. Union Oil Co. (1940), 16 Cal.2d 229, 233 [ 105 P.2d 922 ], The agreement in that case provided that “each [husband and wife] hereby waive any and all right to the estate of the other left at Ms or her death and forever quitclaim any and all right to share in the same of the other, . . . and hereby release and waive all right to inherit under any will of the other . . . and from the date of this agreement . . . they shall have all the rights of single persons and maintain the same relation of such toward the other. ’ ’ The agreement in the case now before us seems more certain and efficacious to the end in question than does that involved in the Sullivan case. In addition to the language of conveyance and relinquishment hereinabove quoted the agreement we are construing provides that “All funds and property of every nature described or referred to in said Exhibit A [with certain immaterial exceptions but specifically including the mooted policy] . . . together with all property of any nature hereafter possessed or acquired by first party [the decedent] shall be and remain the sole and separate property of said first party, and second party [plaintiff] hereby transfers, conveys, relinquishes and releases to first party all right, title, interest and claim which she has or might have therein or thereto.” (Italics added.) Here the plaintiff not only released and relinquished all claims arising out of the marital status but she expressly conveyed to the decedent all of her interest in and claim to the precise property in controversy. Such conveyance, instead of indicating as asserted in the opinion “that the parties contemplated no present renunciation by the husband of the wife as beneficiary,” in any material sense, conclusively establishes that the wife thereupon completely divested herself of all interest under the policy, specifically including the “avails thereof” and any claim which she “might have therein or thereto.” In other words *184 she expressly conveyed to Mr. Grimm all of her interest as beneficiary and agreed that it should “remain" his “sole and separate property." Certainly, he could have reconveyed it to her, but he never did so. As previously shown, there was no occasion or reason for Mr. Grimm, the former husband, to change the name of the beneficiary shown in the policy unless and until he wanted to designate a third person to that status. Since he apparently wished only to have the proceeds go to his own estate he rested upon the conveyance from plaintiff which, at least so far as appears, was never questioned during his lifetime and the due execution and fairness of which are not now questioned. We should not now, after his death, enable plaintiff to gratuitously take from his estate that which was his. The judgment should be reversed. Carter, J., concurred. Appellants’ petition for a rehearing was denied April 23, 1945. Carter, J., and Sehauer, J., voted for a rehearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552510. Public record. Not legal advice.