Klumpke v. All Persons

SHAW, J.

Plaintiff began an action under the so-called McEnerney Act, to declare and establish his title to a parcel of land in San Francisco. Certain persons claiming to be devisees of Bernardina Klumpke, the deceased wife of said plaintiff, appeared and opposed the plaintiff’s claim of title. The judgment was that the plaintiff was not the owner of the property, and that the said devisees were the owners thereof. The plaintiff has appealed from said judgment.

The findings declare, among other things, that the land was acquired by plaintiff in 1881, as his separate estate, and prior to his marriage to Bernardina Klumpke; that in February, 1889; the plaintiff by a grant, bargain, and sale deed, conveyed said land to his wife, Bernardina; that said deed stated a consideration of ten dollars, but that in fact there was no consideration therefor, other than love and affection; that he and his wife resided on the land from that time until her death, on November 1, 1902, and that plaintiff thereafter continued to reside thereon until the beginning of this action, using it as his home; that by her last will, which has been duly probated, said Bernardina Klumpke devised said land to respondents, and that they, and not the plaintiff, own the same.

Appellant claims that the finding that the consideration of the deed was love and affection only is contrary to the evidence. We think it was supported by sufficient evidence. Klumpke was appointed executor of the estate of his said wife. In his inventory of said estate he declared-under oath that the land belonged to his wife at the time of her death. In many other papers sworn to by him, and filed by him in the course of the administration of said estate, he repeated, either expressly or by implication, the statements that this land was the property of the estate of his said wife. On the other hand, he testified at the trial that the deed of 1889 was not intended by him as a gift to his wife, but was intended by him to convey it to her to be held as community property,

[302]

and that no money or other valuable consideration therefor was given or rendered by his wife. Upon this and other testimony of the plaintiff his counsel contend that the land was held by his wife until her death, upon either a resulting of a constructive trust for his use, or- as the community property of the marriage. The court below was not bound to accept the plaintiff’s sworn statements' at the trial as the truth, rather than his repeated statements to the contrary, made under oath during the administration of her estate. There were many circumstances proven at the trial which we need not here state more fully, from which the court might have concluded that his testimony at the trial was not to be credited at all, and that his statements as executor declared the truth. We must therefore hold that the finding in question was supported by the evidence.