George v. Soares

NOURSE, P. J.

Plaintiff, as administrator of the estate of Manuel S. Pinheiro, deceased, appeals from a judgment in favor of defendant in an action seeking to set aside a deed and a trust agreement made by decedent in favor of defendant.

The property involved, situate in Los Banos, was owned by decedent and his wife prior to January 1,1937, on which date the wife died and decedent became the sole owner. Shortly after his wife’s death decedent moved to Oakland to live with his sister-in-law Guilhermina Pasqual. Immediately after his arrival decedent requested his nephew, Joe Pasqual, to make an appointment with an attorney as he wished to give his property to said sister-in-law. A meeting was arranged in an attorney’s office and decedent made a gift of his property to said sister-in-law. Thereafter at decedent’s request the property was reconveyed to him. Subsequently, and on July 21, 1937, decedent conveyed a one-half interest in the property to said sister-in-law. Soon thereafter decedent went to live with Mary Soares, the defendant herein, and another sister-in-law in Mill Valley. On September 10, 1937, an action was commenced on behalf of decedent to set aside the conveyance of July 21, 1937, to Mrs. Pasqual. This action was settled on or about February 10, 1938. On February 11, 1938, decedent deeded the property to the defendant. The last mentioned deed contained a provision that the property was to be held under the terms of an agreement of trust executed concurrently. Under the trust agreement the net income was to be paid to decedent during his life with

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the remainder in fee to defendant subject to a power of appointment in decedent as to one-half of the remainder. The trust agreement recited that the transfer was in consideration of defendant’s services as trustee and of care and keep theretofore given decedent. The deed was recorded March 12, 1938, but the trust agreement was not recorded until January 16, 1940, which was subsequent to the death of the decedent. On December 16, 1938, decedent was declared incompetent and defendant was appointed his guardian, she having theretofore, on December 3rd, filed a petition to have him so declared. Decedent died on December 1, 1939. The property involved was shown to have a value of about $10,250.

Appellant contends that the evidence establishes (and that findings to the contrary are not sustained by the evidence) that decedent was a man over 65 years of age, of impaired mentality, unable to speak, read or write English, without business experience, and unable to care for his own property; that a confidential relation existed between decedent and defendant; that in the questioned transaction decedent acted without independent advice; that the attorney who handled the matter was selected by and in fact represented defendant; and that there was no consideration for the transfer. It is appellant’s contention that under the foregoing circumstances, even though the impaired mentality does not amount to absolute disqualification, a court of equity should set aside a conveyance.