(dissenting).

I dissent.

While I do not say that it was stipulated that the wife Kathryn had no knowledge of the Douglas Company plan at the time of the execution of her property settlement agreement, yet it was agreed she would testify she had no knowledge. While normally I strongly advocate the right of a trial judge to disbelieve a party as a witness, here there was no demeanor of a live witness. Maybe Kathryn was an active partner in the family business and knew all about the Douglas fringe benefits. But I believe a goodly percentage of all American women still let their husbands handle without much question all facets of the man’s work-a-day employment.

We have no way to doubt the effect of what Kathryn would have testified to: That she had no knowledge of the death benefits. No contradicting facts were offered. I do not see how, under judicial notice, it can be said that “under the economic conditions then generally prevailing” Kathryn had “learned of its [the death benefit program’s] existence.” That bends the mast to the breaking point.

It is my notion, absent affirmative misrepresentation or mistake, people should be held literally to their agreements such as Kathryn made in anticipation of her divorce from Lehman. But cases like Grimm v. Grimm, 26 Cal.2d 173 , 157 P.2d 841 , open the door and invite the result we brought through it in Connecticut General Life Ins. Co. v. Hartshorn, 9 Cir., 238 F.2d 417 .

But here we tell Kathryn Lehman Tucker the open door was for Kathryn Penn Hartshorn — but not for her. Continuing affection was apparent in Hartshorn; none is shown to have lingered for Kathryn Lehman Tucker. But here we also find that six months before his death John Lehman and Betty Jean Lehman, now Betty Jean Lehman Ray, mother of Doris, Jacqueline and James, obtained a divorce. It is likely that Lehman, if he had “tended to business,” would have preferred that the benefits go to his own child, Jacqueline, and to Betty Jean’s two children (James and Doris) by a previous marriage whom he had adopted, for Kathryn bore him none. But he did nothing about designating new beneficiaries. The old designation remained unchanged.

I have the feeling that if John Lehman had left Kathryn with three children and Betty Jean with none, relying on Hartshorn the trial judge and we would be saying to Kathryn, “Take the money.”

While I cannot be unhappy that three children presumably will get the ten thousand dollars from Douglas Aircraft as John Lehman’s death benefits, it occurs to me that we do it on a doubtful basis.