Miller v. Miller

[658]

THOMPSON, J.

— This action was commenced by plaintiff to recover from defendant Grace S. Miller an undivided one-half of two parcels of real property in the city of Long Beach, California. The complaint alleged the ownership by plaintiff of an undivided one-half interest, her incompetency and the appointment of a guardian, and then alleged that for some time prior to the death of Willard E. Miller, a son of plaintiff, which occurred January 23, 1920, the record title to the properties was held by him for convenience and for the joint benefit of himself and his mother, the plaintiff. The complaint further alleges that as to one of the pieces of property Willard E. Miller, while physically and mentally afflicted by reason of a stroke of paralysis, and on December 24, 1919, was unduly influenced and persuaded by his wife to execute to James H. Daly a deed, in order that Daly might, as he did, immediately convey the property to Willard E. Miller and his wife, the defendant here, as joint tenants with right of survivorship, and that as to the other piece of property Willard E. Miller, without plaintiff’s knowledge and because of the undue influence of the defendant, took the title in his own and his wife’s name with the right of survivorship, although the funds with which it was purchased were the joint funds of the plaintiff and Willard E. Miller. Judgment was rendered for defendant and plaintiff appeals.

Since the appeal was prosecuted Marietta R. Miller has died and Louis E. Miller, as administrator of the estate of Marietta R. Miller, has been substituted in her stead.

The appeal is based on the assertion that the evidence is insufficient to support the judgment. No particular finding or portion of the findings is pointed out as being insufficiently supported. At the trial it developed that the title to the first parcel of property had been vested in Willard E. Miller since December, 1903; that it had been improved by him with money borrowed for that purpose; that he had also borrowed money from the same source to purchase the other property and pay for the building.. There was testimony to show that some time prior to 1903 the plaintiff owned property known as the “Kennebec Property,” which was sold November 30, 1903, for $19,500, from which it is fair to assume must be deducted a mort