Rebmann v. Major

[686]

Opinion

CHRISTIAN, J.

Hugh and Maritza Major, minors represented by their mother Patricia Carson Major, as guardian, appeal from a judgment in favor of Carl Rebmann, who brought this action through Elsie R. Jonck, conservator. The judgment quiets respondent’s title in two parcels of real property

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as against a commonly shared half interest claimed by appellants under a deed from Maritza Rebmann, the deceased wife of respondent.

The first parcel in question is located at 1349 Montgomery Street, San Francisco, and is the location of The Shadows Restaurant; the second, adjoining the first at 305 Filbert Street, is the Rebmann family residence. Carl Rebmann originally acquired both properties by gift from his father in 1928. The residence had been transferred to Mr. Rebmann’s first wife upon their divorce; she died in 1959 and title thereupon returned to him by devise. Carl Rebmann married his second wife, Maritza, in 1948. Though Carl and Maritza were divorced in 1956, they subsequently remarried and lived together until Maritza’s death in 1965. In October of 1958, Carl Rebmann suffered a stroke which caused partial physical disability Thereafter he entrusted more of his business affairs to his wife. His condition deteriorated, and a conservator was appointed in 1965.

In 1959 difficulties with the city health department necessitated structural alterations of the restaurant building. Before permitting the alterations, the city building department required that Maritza be bound by certain restrictions limiting the commercial use of the property. In furtherance of these arrangements, Carl executed a deed, on November 19, 1959, transferring the restaurant property to Maritza and himself as joint tenants.

On September 15, 1960, Carl executed a deed transferring the residence property to himself and Maritza as joint tenants. Carl and his friend, George Cusick, both testified that Maritza had threatened to leave Carl unless he made the transfer. By then Carl had suffered a series of strokes which made it appear likely that he would predecease Maritza.

There was testimony by the attorney who prepared the 1960 deed that Mr. and Mrs. Rebmann, prior to the execution of the joint tenancy deed to the residence property, orally agreed between themselves that there would be no transfer of the property but that it would go to the survivor. There was no evidence of such an agreement as to the restaurant property.