Briggs v. Briggs

MUSSELL, J.

Plaintiff, the former wife of defendant Garrett H. Briggs, brought this action to obtain a judgment determining that certain real property in Orange County is the community property of plaintiff and said defendant. She also seeks damages for the loss of her community property interest therein in the event that it cannot be conveyed to her.

On May 17, 1940, an order settling final account and for distribution was made and entered in the matter of the estate of Jesse 0. Belton, deceased. By this order there was distributed to defendants herein, as trustees, certain property, of which the real property herein involved was a part, in trust, “for the sole and exclusive benefit and use of Nellie T. Belton, widow of decedent, to use and enjoy the corpus as well as the income at the times she has need for moneys during her life.” It was further provided in said order that “if there be any residue in this estate, then the trust shall terminate and the remainder go to her heirs or to whom she so wills.

[767]

. . . Said trustees are authorized at any time or times to sell the whole or any part or parts of the residuary real and personal estate, either together, or in parcels, and either by public auction or private contract, and upon such terms and subject to such conditions, and in such manner in all respects as they shall think fit, with power to buy in, or rescind, or vary any contract for sale, and to resell without being responsible for loss, and for the purposes aforesaid to execute all deeds, assurances or things as they shall think fit.”

Sometime in 1943 defendant Nellie T. Belton, in her individual capacity and not as trustee of said trust, executed to defendant Garrett H. Briggs, in his individual capacity and not as a trustee of said trust, a grant deed purporting to convey to defendant Garrett H. Briggs, subject to said trust and all the provisions and terms thereof, the real property here involved. This deed was never recorded and was destroyed by defendant Briggs in the “latter part of 1943 or early part of 1944.”

On May 24, 1949, plaintiff Mary S. Briggs obtained an interlocutory decree of divorce against defendant Garrett H. Briggs. It is recited in this decree that Nellie T. Belton during the year 1943 conveyed the property here involved to Garrett H. Briggs; that he at no time reconveyed the property to Nellie T. Belton or to any person, association or corporation and “that no disposition at this time as to the said Orange county real property and appurtenant stock be made by this court and that this court ought not and does not at this time determine the respective rights and interests of the said husband and wife therein or thereto, and the court does not at this time make any division thereof as between said husband and wife; and that the community rights and interests, if any, of said husband and wife in and to said real property and appurtenant stock be determined and assigned in a subsequent action.”