Maxon v. Avery

BARNARD, P. J. This is an action to set aside a joint tenancy with the right of survivorship, and quiet the plaintiff’s title in and to certain money and a certain note and trust deed.

On or about June 2, 1936, Norton H. Tharp, who was then 76 years of age, sold a ranch, which was his separate property for $13,500, receiving $3,500 in cash and a note for $10,000 secured by a trust deed upon the property. The note and trust deed were made out in favor of Tharp, his wife, and Rose Y. Avery, who was a niece of his wife, as joint tenants with the right of survivorship, and the cash received was deposited in a bank under a similar arrangement. The couple had no children, and Tharp’s wife died on November 15, 1936. On January 11, 1937, Tharp was adjudged incompetent and Donald A. Maxon was appointed as guardian of his person and estate.

The guardian brought this action alleging that on June 2, 1936, Tharp was weak in body and mind and unable to care for his property; that the defendant occupied a confidential relationship with him; that without his knowledge or understanding and in violation of that relationship she had procured the placing of the proceeds of this ranch in such joint tenancy; and that the creation of this joint tenancy was procured by fraud and undue influence.

The court found in all respects in favor of the defendant, but findings and judgment were entered after Tharp had died. On a former appeal (Maxon v. Avery, 32 Cal. App. (2d) 300 [89 Pac. (2d) 684]), taken on the grounds that the findings were not supported by the evidence and that the judgment was void, having been entered before the administrator of Tharp’s estate was substituted as the party plaintiff, this court reversed the judgment on the latter ground and with respect to the first ground, said: “Conceding, but not holding, that the evidence would have supported contrary findings and a judgment in favor of the appellant,, it would have to be held that the findings and judgment as entered [157]are amply supported by the evidence. In fact, they are supported by a preponderance of the evidence. ’ ’

On a rehearing, after vacating the former findings and judgment, the court again entered substantially the same findings of fact finding, among other things, that it was not true that at the time in question Tharp “was weak in mind, or was unable unassisted, to care for himself or his property” except that he was, on account of age, unable to perform the physical labor of caring for his real property; that he personally conducted the negotiations for the sale of this property; that at all times during said transaction he was mentally competent; that he freely discussed the details of this transaction, the disposition to be made of the moneys to be received therefrom and the terms of the trust deed and note, not only with his wife but also with other competent disinterested persons who gave him independent advice particularly as to the disposition to be made of said moneys and the payees to be named in said note and trust deed; that after full consideration and discussion and with full knowledge and understanding and of his own free will Tharp consummated said sale and made the disposition in question of the proceeds thereof; that it was not true that the defendant occupied a confidential relationship with Tharp; that it was not true that she caused or procured the making of the joint tenancy with respect to the proceeds of the sale; and that there was no fraud or undue influence. Another judgment was entered, from which the plaintiff has appealed upon a clerk’s transcript covering the proceedings after the going down of the remittitur on the other appeal and with a stipulation that the reporter’s transcript filed in connection with the other appeal should be used and considered on this appeal.