Taylor v. Bunnell

SHENK, J.

This is the second appeal in this case, the first having been decided by the District Court of Appeal, Third Appellate District.

(Taylor

v.

Bunnell,

77 Cal. App. 525 [247 Pac. 240].) The facts recited in the opinion on that appeal, supplemented by what is stated herein, are sufficient for the purposes of this appeal.

The action was brought to establish a constructive trust in certain real property deeded to the defendant, Dr. Edwin Bunnell, by his wife, Margaret A. Bunnell, a short time before her death, and which was her separate property. The trust was sought to be established in favor of the plaintiff, Alma Taylor, who is one of several nieces of the decedent. The plaintiffs alleged that the deed to the defendant was delivered by the decedent upon the parol promise of the defendant made at the time to the grantor that he would convey the property to the plaintiff effective upon his death; that the transaction created, not an estate in fee simple in the grantee which the deed purported to convey, but a life estate in the grantee and a remainder in fee to the plaintiff; that the defendant was therefore a constructive trustee of the interest conveyed to him for said purposes, and that shortly after the death of the grantor the defendant repudiated and denied the existence of the alleged trust.

On the first trial of the action the court found in favor of the defendant. On the appeal from, the judgment the District Court of Appeal held that the trial court had erred in admitting in evidénce certain statements and declarations of the decedent made subsequent to the time of the delivery of the deed to the defendant. The holding was based on the ground that, having parted with her entire interest in the property, the declarations referred to by the District Court of Appeal were not admissible under any exceptions to the rule forbidding the admission in evidence of hearsay declarations. The District Court of Appeal in its opinion expressly referred to and included within its determination all such

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declarations whether favorable to the plaintiff or to the defendant. That court concluded that the admission of declarations favorable to the defendant was prejudicial to the plaintiff on the record presented and reversed the judgment.