Mueller v. Marshall

SHINN, P. J.

This action is by Mueller as executor of the will of Ellery D. Marshall, deceased, and by nephews and a niece of the decedent who are beneficiaries under his will, the purpose of the action being to procure the annulment of a quitclaim deed executed by decedent in favor of his brother, Howard Marshall, and Howard’s wife. Judgment was in favor of plaintiffs and defendants appeal. We find no merit whatever in the appeal.

The court found that on November 9, 1950, Ellery owned a lot in Wilmington, California; Howard owned real property in San Diego; on or about the said date, Ellery and Howard agreed that each would execute a quitclaim deed of his property in favor of the other for the sole purpose of avoiding proceedings in probate. The deeds were executed and were placed by Howard in a safety deposit box to which only he and his wife had access; in June 1954, the agreement was cancelled by mutual consent and Howard sold his San Diego property; later, at the request of Ellery, Howard returned Ellery’s deed and Ellery tore it into pieces, twice lengthwise and twice crosswise; Ellery died August 19, 1956, leaving a will by which $10 was bequeathed to Howard and the remainder of his estate to the said nephews and niece. Two days after Ellery’s death, Howard obtained possession of the pieces of the deed, took them to the office of his attorney who taped them together and caused the document to be placed of record August 21, 1956, two days after Ellery’s death. Howard and his wife then took possession of the Wilmington property and have lived there ever since. The court found the facts as we have related them, that there was no consideration for Ellery’s deed, neither he nor Howard intended by his deed to divest himself of title or to convey any present interest to the other and that each intended that his deed would not become operative unless he should predecease the other. The findings have ample support in the evidence. Howard, called under section 2055, Code of Civil Procedure, testified that the purpose and agreement was1 ‘whoever went first, why the last would have it. . . . Either one, yes, could dispose of the property at any time they wanted”; he was keeping the deed for Ellery; the survivor would get both pieces of property; when he sold his

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property he destroyed the deed in favor of Ellery; he bought bonds with the proceeds, put them in the safe deposit box in an envelope marked “in case of accident this property belongs to E. D. Marshall.” Howard also testified that October 19, 1955, Ellery handed him the torn pieces of the deed “It was tore just like that—he just said he tore it accidentally”; his attorney pasted the pieces together and later had the instrument recorded.