Winchester v. Winchester

SHAW, J.

This is an action by the plaintiff Sarah A. Winchester, in her own' behalf and as administratrix of the estate of L. E. Winchester, her husband, against the defendant to cancel a deed executed by her said husband during the marriage, purporting to convey to the defendant George E. Winchester a certain tract of land acquired by L. E. Winchester during the said marriage, and to declare that the plaintiff is the owner of said land. Judgment was given for the defendant. The plaintiff appeals from the judgment and from an order denying her motion for a new trial.

The plaintiff and L. E. Winchester were married in 1884, and thereafter they lived together as husband and wife until the death of L. E. Winchester, on March 1, 1912. L. E. Winchester acquired the land on November 21, 1906, by deed from his father, Elliot Winchester. The deed recited a consideration of three hundred dollars. The conveyance by L. E. Winchester to George E. Winchester was made on February 29, 1912, without a valuable consideration, as a gift to George, and without the written consent of the plaintiff.

It is the claim of the plaintiff that the land was community property,'and that the deed of the husband thereof having been made without consideration, was not binding upon the wife, but may be avoided by her. This would be the effect of such a deed under section 172 of the Civil Code. This action was brought to assert this claim.

The defendant admitted the making of the deed of gift by L. E. Winchester to George E. Winchester without the consent in writing or otherwise of the wife, but asserted that the deed from Elliot Winchester to L. E. Winchester whereby the

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latter acquired title to the land was a gift from the grantor to the grantee, in consequence whereof said land became the separate property of L. E. Winchester instead of community property, wherefore, he says, the deed of gift by L. E. Winchester to him, being of the separate property of the husband, was valid and free from interference by the plaintiff as the surviving wife of L. E. Winchester. The question whether it was community property, or the separate property of L. E. Winchester, is the point at issue upon this appeal.

On November 21, 1906, Elliot Winchester and L. E. Winchester executed a contract in writing whereby L. E. Winchester agreed to pay to Elliot Winchester annually, as long as the latter should live, the sum of three "hundred dollars, and in case the wife of said Elliot survived Mm, to pay said wife an additional sum of three hundred dollars after his death; in consideration whereof the said Elliot Winchester agreed to convey to L. E. Winchester the tract of land in controversy, in fee simple. Contemporaneously with the execution of this contract, and as a part of the same transaction, the deed was executed by Elliot Winchester to L. E. Winchester. Evidence was offered and admitted over the objection of the plaintiff to the effect that in the conversation between the parties leading up to and immediately preceding the execution of said contract and deed, the parol understanding was that Elliot Winchester should make a gift of the property to L. E. Winchester, but should reserve the rents and profits thereof, so long as Elliot lived, and that the contract and deed were executed to carry out this intention to make a gift and reserve the rents and profits. It was upon this evidence that the defendant based his claim that the conveyance from Elliot Winchester to the plaintiff’s husband was a deed of gift, the effect whereof would be that the property became the separate estate of said husband and not the community property of the marriage.