I dissent from the portion of the order affirming the judgments. The respondent, as I read the record, far from being the paragon of virtue described in the main opinion, was quite the contrary. Disregarding her *555marriage vows to abide with him “until death do us part” and “for richer or poorer”, she connived with the decedent at a time when he was in financial distress to permit him to obtain a divorce from her, however being insistent that he contribute to her financial upkeep, which he did for a period of over eleven years (without protest on her part) in the total sum of $29,700.
In the meantime, while accepting the fruits of his labors, she contributed nothing toward his well being (physically or spiritually), but on the contrary harassed him on each occasion when, due to financial stress, he was tardy in furnishing her funds. She permitted him to marry appellant and to live with her over a number- of years without protest. March 4, 1927, decedent and appellant were married and appellant lived with him as his wife, cared for him as a loving and dutiful spouse, including administering to him in his last illness, all with the knowledge and without protest of respondent.
Now that his lips have been hushed by the Grim Reaper, having accepted decedent’s bounty, she desires to reap the benefit of his years of labor, toward which she contributed nothing and to which appellant undoubtedly contributed much, by claiming the benefit of her own deceit and fraud.
The rule as announced in the main decision, in my opinion, finds no support either in an enlightened jurisprudence, equity, good morals, or substantial justice. Certainly, if the main decision is to stand, the legislature at the earliest opportunity should adopt appropriate legislation to prevent the reoccurrence of such a palpably unjust result.
The essential facts and the law applicable thereto are, in my opinion, the following:
Mr. McNutt (who died January 25, 1938) was married to respondent in New York on August 6, 1907. October 13, 1926, he entered into a property settlement with respondent, which she claims was induced through fraud and duress, by the terms of which he obligated himself to pay her $50 per week from the date of the agreement until the death of either party. The property settlement contained also this provision:
“The same Georgia M. McNutt agrees to and does hereby grant, remise, release and quit claim unto the said William Slavens McNutt, all her right, title, interest and dower in *556and to all real estate whereof the said William Slavens Mc-Nutt is or may hereafter become seized or possessed, and also agrees and does hereby release the said William Slavens Mc-Nutt of and from all claims of every character and description. ’ ’
Respondent also executed a document by which she consented that decedent might obtain a divorce in Mexico. This he did shortly thereafter. Subsequently decedent married appellant in the State of New Jersey, with whom he lived, with the knowledge of respondent, until the time of his death.
Decedent abided by the terms of his agreement with respondent, paying her $50 a week from the date of the agreement until his death, a period of eleven years, which in the aggregate amounted to the sum of $29,700. It is conceded that the divorce decree obtained by decedent in Mexico was void, for the reason that the court did not have jurisdiction to grant the decree.
Respondent claims that she is entitled to be administratrix of decedent’s estate as his surviving widow; that certain property, including the proceeds of an insurance policy paid to appellant, constitutes community property, and that therefore as decedent’s surviving widow she is entitled to the same.
These are the questions presented for determination:
First: Is respondent estopped from asserting the invalidity of the divorce decree obtained by decedent in Mexico and the invalidity of the property settlement agreement between herself and decedent, which she alleges was procured through fraud and duress, for the reason that for more than eleven years without objection she accepted the benefits accruing to her under the property settlement agreement, being fully aware of the alleged fraud and duress and that decedent had married appellant?
Second: If respondent is estopped to assert the invalidity of the property settlement agreement between herself and decedent, has she forfeited her right to be administratrix of his estate?
The first question must be answered in the affirmative. Where a party to a property settlement agreement alleged to have been obtained through fraud or duress, knowing of the alleged fraud or duress, accepts benefits under the agreement and treats it as valid during the lifetime of the other party, such party is estopped when the marriage relationship *557is dissolved by death to assert the invalidity of the property settlement agreement or a decree of divorce obtained by decedent. (Bruguiere v. Bruguiere, 172 Cal. 199, 203 [155 Pac. 988, Ann. Cas. 1917E, 122]; Estate of Yoell, 164 Cal. 540, 549 [129 Pac. 999] ; Morehouse v. Morehouse, (Tex. Civ. App.) [111 S. W. (2d) 831, 834] ; Drummond v. Lynch, 82 Fed. (2d) 806, 810; Dry v. Rice, 147 Va. 331 [137 S. E. 473, 475] ; McElrath v. McElrath, 120 Minn. 380 [139 N. W. 708, 710, 44 L. R A. (N. S.) 505] ; Berman v. Thomas, 41 Ariz. 457 [19 Pac. (2d) 685, 688] ; Hughes v. Leonard, 66 Colo. 500 [181 Pac. 200, 204, 5 A. L. R. 817].)
In McElrath v. McElrath, supra, the Supreme Court of Minnesota at page 710 thus states the rule:
“We have found no case holding that a spouse, with knowledge that the other, through fraud or perjury, not going to the jurisdiction of the court, has obtained a decree of divorce, may sit idly by for years, until the death of the one guilty of fraud, and then successfully invoke the equity powers of the court to secure property rights. When the spouse wronged by the decree, or any one claiming under such an one, comes into court asking relief, so that property may be reached, it must be done within a reasonable time after knowledge of the fraud, or of facts from which a person of ordinary prudence would proceed to ascertain the true state of affairs. ’ ’
Again in Berman v. Thomas, supra, the Supreme Court of Arizona at page 688 has this to say:
“Nine years elapsed before plaintiff questioned the property settlement or the decree of divorce. Although her husband lived for eight years after they had been divorced and their property rights settled, plaintiff took no action towards asserting her present claims. Her silence during that period can only be accounted for on the theory that she was not dissatisfied therewith. If her husband coerced or compelled her to obtain the divorce and fraudulently deceived her as to the extent and value of the community property, as she alleges in her complaint in cause No. 6252-B, her delay in attacking such proceeding was not because of lack of knowledge of his perfidy in over-reaching her, but for some other reason. If a party can thus await the death of her adversary husband and thereafter secure the acceptance by the court of her version of their matrimonial and property troubles thought to be *558adjudicated in their lifetime, the estate of the deceased spouse would be exposed entirely too much to the whims and avarice of the survivor. The plaintiff’s delay in attacking the judgment in cause No. 3352-B might have been, and probably was, because she thought, or knew, that she could not successfully attack it so long as her husband was alive and able to contest her attack. After said judgment was entered, she was most of the time living in Globe, where her husband’s property was, and when not there was in and about Phoenix, and must have known all about the situation.”
Applying the legal principles enunciated by the foregoing eases to the instant case, we find that respondent in October of 1926 entered into a property settlement agreement with decedent whereby she made a complete release of any claim she might then or thereafter have to the property of decedent, in consideration of the payment to her of $50 per week thereafter. At the same time she consented to a Mexican divorce. February 3,1927, the Mexican divorce decree was granted and notice served on respondent. March 4, 1927, decedent married appellant, which fact was known to respondent immediately thereafter; and respondent, from the date of the property settlement agreement to the date of the death of decedent, January 25, 1938, accepted from him $50 each week pursuant to their agreement. Shortly after the property settlement agreement was entered into respondent took the same to her attorneys, together with the papers concerning the Mexican divorce. At no time subsequent thereto and prior to decedent’s death did she question or take any action to assert the invalidity of the property settlement agreement or the Mexican divorce. She permitted appellant to hold herself out as the lawful wife of decedent and to incur the benefits and obligations incident to a valid marriage.
In view of the foregoing facts, upon the simplest principles of equitable estoppel respondent is estopped after decedent’s death to question the validity of either the property settlement agreement or the Mexican divorce decree for the sole purpose of sharing in his estate.
The second question must likewise be answered in the affirmative. The law is established in California that if a wife by property settlement agreement relinquishes any right she has to inherit her husband’s property she thereby waives *559her right to administer upon his estate. (In re Davis, 106 Cal. 453, 456 [39 Pac. 756].) As heretofore pointed out, the property settlement agreement between the parties provided in part as follows:
“The same Georgia M. McNutt agrees to and does hereby grant, remise, release and quit claim unto the said William Slavens McNutt all her right, title, interest and dower in and to all real estate whereof the said William Slavens McNutt is or may be hereafter become seized or possessed, and also agrees and does hereby release the said William Slavens Mc-Nutt of and from all claims of every character and description.”
In re Davis, supra, held that under a similar provision in a property settlement agreement the wife relinquished any right which she might have had to inherit her husband’s property or to administer upon his estate. At page 456 our Supreme Court said:
“The appellant contends that inasmuch as the agreement could not and did not take from the wife her status as such, she remains the widow of deceased, and is entitled to administer upon his estate irrespective of the question as to her right in the property. In other words, that she is so entitled merely by reason of being the widow, and that the question as to heirship is not involved on an application for the grant of letters. But in neither respect can appellant’s position be sustained without doing violence to the express language of the statute. In the first place, as we have seen, the right of the widow to administer, like that of any other relative, is made to depend upon her right to take of the personal estate ; and that being so, the question as to her right to inherit is necessarily involved in the application for letters. (See Howell v. Budd, 91 Cal. 342 [27 Pac. 747]; In re Carmody, 88 Cal. 616, 618 [26 Pac. 373].) Of course, she remains the widow, since the parties could not, by their contract, change their matrimonial status; but it was perfectly competent for them to alter their legal relations as to their property, and this they accomplished. The wife contracted away her inheritable interest in her husband’s property, and with that right went the right to administer upon his estate.”
For the foregoing reasons the judgments appealed from should, in my opinion, be reversed.
*560A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 11, 1940. Carter, J., Gibson, J., and Waste, C. J., voted for a hearing.