Brown v. Burbank

Ross, J. —Action to annul a deed of conveyance. The plaintiff’s maiden name was Burbank. Her father, George W. Burbank, who died in August, 1866, when she was but nine years of age, was the son of the defendants. Plaintiff’s mother died when she was but three years old. From the time of her father’s death until her marriage she resided with her grandparents—the defendants — and was under their care and control. She had no other home, and was treated by them in all respects as their own child, and she regarded them as the only persons to whom she owed filial duty, or from whom she had [100]support and protection. When George W. Burbank died, in August, 1866, he was the owner of a house and lot in the city of Sacramento. The plaintiff was left his sole heir. In October, 1866, the defendant P. D. Burbank obtained letters of administration upon his son’s estate, and as such administrator took possession of the house and lot, and with his wife—1ns co-defendant herein—has ever since occupied a portion of the house as a residence and received the rents of the remaining portion.

In his petition for letters of administration upon his son’s estate, in the inventory of the estate filed by him, and in his verified accounts filed in the Probate Court and confirmed on his petition, P. D. Burbank invariably described the house and lot as the property of the estate of George W. Burbank. He made no claim upon the property nor pretended that the estate was indebted to him. On the contrary, he charged himself in his accounts with the value of the use of that portion of the premises occupied by him, and with the rents of the remaining portion. On his petition, he was allowed the use and rents of the property for the maintenance and education of the plaintiff. The order making this allowance was made in December, 1868, and from that time until May 17, 1877, P. D. Burbank continued to enjoy the same. His administration was never closed. On the day last mentioned the property was worth $5,000, and its annual rental value was $750. It constituted the only property of the plaintiff. She was at that time nineteen years and eight months old, but was still residing with the defendants and under their care and protection. She had never been informed by them, or either of them, of her rights with respect to the property. Such being the situation and relations of the parties, the defendant, Irene H. Burbank, represented to the plaintiff that the property never really belonged to her deceased father, but was rightfully and in fact the property of P. D. Burbank, and thereupon requested the plaintiff to convey it to her, promising at the same time to make a will devising it to plaintiff, so that it would be hers after the death of the grandmother. The plaintiff, acting solely upon these representations and in obedience to the will and request of her grandmother, without other information, counsel, or advice, and in ignorance of the real