Medeiros v. Silva

SCHOTTKY, J. Manuel Medeiros died on March 20, 1949, leaving surviving as heirs at law his wife, Mary Medeiros, and four children by a former marriage, Manuel Medeiros, Jr., Mamie P. Cotta, John F. Medeiros and Annie Silva. On March 21, 1949, a deed of gift executed by Manuel Medeiros on February 16, 1942, was recorded, said deed naming Annie Silva as grantee and describing approximately 36 acres of land in Stanislaus County.

On April 9, 1949, John F. Medeiros filed a petition for the probate of decedent’s will, said will having been executed on March 2, 1949. Said will contained a bequest to the wife, Mary Medeiros, of money in bank and certain personal property, but with the following provision:

“. . . It is expressly specified herein that the foregoing [772]bequest to my wife shall be in lieu of any rights that my said wife, Mary, shall have in my possessions and to my property by way of homestead rights, by way of community property rights, as my widow or otherwise, or by way of any other claim whatsoever upon my estate, and in case any such rights are claimed by my said wife, all property bequeathed to her herein shall become part of the residue of my estate and shall go to my said children, John F. Medeiros, Annie Silva and Mamie P. Cotta, share and share alike. ’ ’

Said will also provided:

“I give and devise all real property, together with any personal property not otherwise disposed of herein, which I may own or possess at the date of my death to my son, John F. Medeiros; my daughter, Annie Silva, and my daughter, Mamie P. Cotta, in equal shares of one-third to each of said children.”

On April 29, 1949, a contest of said will was filed by the surviving wife, Mary Medeiros, and Manuel Medeiros, Jr., and thereafter, on May 9,1949, Mamie P. Cotta was appointed special administratrix with general powers.

On November 12, 1949, plaintiff, Mary Medeiros, filed the instant action against Annie Silva, Mamie P. Cotta, as special administratrix of the estate of Manuel Medeiros, deceased, and John F. Medeiros, as defendants, to set aside the said deed of February 16, 1942, and to have it adjudged that she was the owner of the real property described therein, alleging that said real property was the community property of deceased and plaintiff; that said deceased had executed said deed without her knowledge and consent; and that there was no consideration for said deed.