Nordquist v. Malmberg

SEAWELL, J.

Appeal from a decree in favor of defendant administrator decreeing that certain real property situate in the city of Turlock and described in a certain deed executed by third parties in which the wife of appellant, since deceased, was named as the sole grantee, the purchase

[395]

price of which was paid by appellant husband, was a gift from said husband to his wife. Said real property when conveyed, November 17, 1917, was approximately of the value of $1200. The appellant, Peter Nordquist, and his deceased wife, Christina Nordquist, were of Swedish descent, if not of Swedish birth. They intermarried in Minnesota in 1915. The wife had been married twice before and the husband had been married once. Both had children by said former marriages. Both had small estates before intermarriage, ranging in value from $2,000 to $3,000, respectively. They moved from Minnesota to the city of Turlock, California, on October 10, 1917, and shortly after their arrival at Turlock entered into negotiations which terminated in the purchase, on November 17, 1917, of the home owned by Arvid Anderson and wife and situate in the city of Turlock at the price of $1200, the whole of which sum was the separate funds of appellant. The deed was duly recorded. Mrs. Nordquist was the aunt of Mrs. Anderson. Mrs. Nordquist was made the sole grantee in said deed. This was with the consent of appellant husband. About one year thereafter a second deed, describing the same premises, was executed by the Andersons to Mrs. Nordquist. This deed contained the clause “as her sole and separate property”. Said second deed was made and executed without the knowledge of appellant. Said deed, however, upon being duly recorded was placed in a joint depository of said spouses, where it seemingly remained until Mrs. Nordquist’s death, which occurred in 1926, approximately eight years after its execution. The real property in suit was inventoried as the separate property of decedent and by the decree of distribution appellant, as the heir of said decedent, was awarded a one-third interest therein. Appellant was not at any time represented by. counsel at said probate proceedings, and although present when the petition for distribution came before the court he made no objection thereto. The probate judge, nevertheless, thereafter, upon motion made by counsel retained by him, set aside said decree of distribution in order to give him an opportunity to litigate the merits of his claim to the effect that he had no intention of making a gift of said property to his wife, and inasmuch as he had paid from his separate estate the