Hillyer v. Hynes

KERRIGAN, J.

This is an appeal by the plaintiffs from a judgment in favor of the defendant and from an order denying their motion for a new trial.

The complaint alleges that on the twenty-seventh day of September, 1909, Anna Flanigan Romoser was the owner of the real property here in controversy; that shortly before that date, being severely ill and not expecting to live, she entered into an arrangement with her husband, Henry Romoser, whereby she was to execute and deliver to him a deed of gift of said real property, and he in turn was to execute a like deed conveying the property to Catherine Meyers, a niece of Mrs. Romoser’s former husband, and place the same in escrow, to be delivered upon his death; that accordingly Mrs. Romoser executed- her deed to Henry Romoser, and that he continued to own the property to the

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time of his death; that while he made and signed the promised deed of gift to said niece he never actually delivered it to her nor in escrow for her, without, however, ever repudiating his agreement so to do. This failure of Eomoser to keep his agreement is charged in the complaint as fraudulent ; and it then proceeds to allege that he died intestate on January 24, 1914, and that the defendant is the administrator of his estate; that Catherine Meyers died intestate on December 28, 1910, leaving as her only heirs the plaintiffs. The prayer of the complaint in part is that the defendant be declared to hold the property in trust for plaintiffs, and that he be required to convey the property to them, and that their title be quieted as against .said defendant, administrator of the estate of Henry Eomoser.

All the material allegations of the complaint are denied in the answer; and in addition the defendant alleges that the plaintiffs’ cause of action is barred by subdivision 4 of section 338 of the Code of Civil Procedure, by subdivision 1 of section 3-39, and by section 343 of said code.

In addition to finding generally for the defendant the trial court also found that plaintiffs’ cause of action was barred by the provisions of subdivision 4 of section 338 of the Code of Civil Procedure, as pleaded.

From the evidence it appears without dispute that Mrs. Eomoser died in March, 1910; that on September 27, 1909, being very ill she sent for her attorney, and informed him that she desired to make a conveyance of the property in controversy; that as she had acquired it from her first husband, Lawrence Flanigan, she thought it only fair to give the same to Mrs. Catherine Meyers, a niece and only living relative of said Lawrence Flanigan; but that she also believed it was her duty to her present husband—who was old and without income—to reserve for him a life estate in the property. She directed her attorney to draw a deed which would carry into effect these desires. It was accordingly drawn, and when presented to her for execution it transpired that since giving the above instructions she had been advised by one Father Casey that it would be better for her to make a deed of gift of the property to Henry Eomoser, and have him make a like deed to Mrs. Meyers, placing the latter in escrow with Father Casey, to be delivered to the grantee upon Henry Eomoser’s death. Her attorney expressed his