Marshall v. Marshall

California Court of Appeal Apr 4, 1956 No. Civ. 21251Published

Before: Nourse (Paul)

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Holding. The court held that the trial court's findings regarding the validity of the deed, including the existence of consideration, proper delivery, and acceptance, were supported by substantial evidence. Additionally, the court ruled that the attorney-client privilege did not bar the testimony and documents in question, and that the trial court did not abuse its discretion in allowing the defendants to amend their answer.

Issues

Whether the trial court's findings regarding consideration, delivery, and acceptance of the deed were supported by substantial evidence.
Whether the trial court erred in admitting testimony and documents from the plaintiff's former attorney over claims of attorney-client privilege.
Whether the trial court abused its discretion in permitting the defendants to amend their answer to conform to the proof.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Whether there has been a delivery is a question of fact. Delivery is primarily a question of intent.”

“Not all communications between attorney and client are privileged.”

“A great deal of the evidence given at the trial was devoted to the issues of consideration and delivery, and under the circumstances here it would have been an abuse of discretion to deny the defendants’ request to amend their answer.”

NOURSE (Paul), J. pro tem.

By her complaint, plaintiff seeks to quiet title to certain real property. She appeals from a judgment decreeing that the defendants are each the owner of an undivided one-fifth interest in the property, subject only to a life estate in her.

The following facts are supported by substantial evidence: In April, 1951, plaintiff signed a grant deed conveying to her five granddaughters, including the three defendants, the property in question, but reserved to herself a life estate therein. The deed was executed in the presence of her son and her attorney who, as a notary, took her acknowledgment. At that time she instructed her attorney to record the deed but not to tell the grantees of its execution. The deed was recorded and after recordation was retained by the attorney until sometime in the year 1954, when at plaintiff’s request he returned it to her.

In discussions with her son and her attorney, plaintiff stated that she wanted her five granddaughters to have the property and wanted to avoid the trouble and expense incident to having it administered upon as a part of her estate.

At the time of the execution of the deed there was in existence and unrevoked a will by which plaintiff devised the property described in the deed to her five grandchildren.

After the deed was returned to plaintiff she, through her present attorney, requested the grantees to reconvey the property to her. A year or more before the request for a reconveyance was made, two of the defendants learned of the execution and recordation of the deed but neither rejected the grant made to them by it.

No valuable consideration was received by plaintiff and she denied having any love or affection for the grantees at the time of the execution of the deed, and in fact denied its execution. There was, however, substantial evidence proving that plaintiff in fact had a great deal of love and affection for

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the grantees and that that love and affection induced her to execute and deliver the deed.

At the close of the evidence the court permitted defendants to amend their answer to conform to proof and so as to deny the allegations of paragraph VI of the complaint as to lack of consideration and want of delivery.

Marshall v. Marshall

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