Smith v. Smith

MOORE, P. J. Defendants appeal from a judgment imposing a trust upon certain personal property in their possession and declaring that respondent Earl Smith as administrator of the estate of Minnie A. Smith is entitled to such property.

Respondent, Earl D. Smith, son of decedent, initiated this action to impress a trust in favor of the heirs of decedent upon the proceeds from the sale of certain realty situated in Salt Lake City, Utah, one thousand shares of the capital stock of Equity Oil Company, and $1,700 in money—all formerly owned by decedent and transferred shortly before her death to respondents’ brother, Warren, and the latter’s wife, Elsa.

Mrs. Smith deceased in Los Angeles on May 17,1948, at the age of 78. She formerly resided in Salt Lake City where in March, 1948, she was severely injured in an accident. During the period of her ensuing hospitalization, her daughter-in-law Elsa paid her a visit on April 13 and remained there until the 24th when she returned to her own home in Los Angeles, accompanied by Mrs. Smith. Just prior to such departure for Los Angeles, decedent delivered a deed conveying her Utah realty to Elsa and Warren. At the same time she presented to appellants her household furniture, a draft for $800 or $900 and endorsed in blank and delivered to appellants her certificate for the shares of Equity Oil Company.

Appellants answered affirmatively that there was an absolute transfer of the property to them in consideration of their promise to care for decedent and to assume and pay the expenses of her funeral and her last illness. A second affirmative defense alleged that an outright gift of her Utah home and the various items of personalty had been made to appellants by decedent. However, the trial court found that such property was transferred “only in trust for the use and benefit of the said Minnie A. Smith, with the right in the defendants to apply so much thereof as might be necessary for the support, care and maintenance of the said Minnie A. Smith.” Accordingly, it was adjudged that Earl, as administrator of decedent’s estate was entitled to the possession of all the personalty including the proceeds from the sale of the real property which had been effected by appellants.

The latter now contend that the evidence is insufficient to support the findings that a trust was intended, that such evidence is not “clear and convincing” and thus does not meet the rule that testimony as to the oral admissions of any person must be received with caution (Code Civ. Proc., § 2061) [221]