Livernois v. BrandtLivernois v. Brandt
Plаintiff-respondent brought this action for declaratory relief (more in the form of an action to declare a trust) against defendants and appellants George F. Brandt, and Margaret Brandt, individually and as administratrix of the estate of Wallace George Brandt, deceased, to declare her to be an equitable owner of an undivided one-fourth interest in certain real property in Imperial Valley and to declare George F. Brandt a trustee holding said property for plaintiff and to order him to execute a deed to an undivided one-half interest therein to defendant Margaret Brandt as administratrix of the estate of Wallace George Brandt, deceased; that she, as administratrix, be required to list said property in the inventory of the estate of Wallace George Brandt, deceased, subject to administration of said estate and for an accounting of any money received since the death of Wallace George Brandt on account of the purchase price from the sale of said property to the extent of plaintiff’s interest therein.
Defendants, in their answer, deny generally these claims and state that plaintiff had no interest in said property at any time or in any funds derived from a sale thereof. It is claimed by defendants that defendant George F. Brandt held title to the interest of Wallace Brandt in the property as trustee for the benefit of his wife, Margaret Brandt.
The property involved consists of three separate but adjoining parcels of land:
Parcel No. 1 consisted of 97 acres and was originally bought by Wallace Brandt in 1916 and was transferred to his father, George F. Brandt, without consideration, because of some threatened divorce action by his first wife, about January 17, 1958, about one year before Wallace died. Both Wallace and George lived upon and worked this ranch together.
Parcel No. 2 consisted of 100 acres originally purchased by George F. Brandt in 1916. It was planted to alfalfa.
Parcel No. 3 consisted of 320 acres purchased by George F. Brandt and his wife as joint tenants. His wife died in 1954.
Plaintiff was and is the daughter of Wallace Brandt, the deceased, by a former marriage, which ended in divorce in 1957. Plaintiff is the grandaughter of George F. Brandt.
It appears that about nine months before the death of Wallace Brandt, the three tracts of land were sold to one John Jacksоn for $125,000. The downpayment was divided equally between the father George and the son Wallace. George F. Brandt has executed a purported assignment, to become effective at the close of escrow, of one-half of the balance remaining due upon a note and trust deed on said property, securing the payment of the purchase price by the buyers.
As is noted, the complaint alleges that it was the intention of Wallace and George to permit George to hold title to a one-half interest in all of said real property as trustee for Wallace. The prayer is that plaintiff be declared to be the equitable owner of an undivided one-fourth interest in said property and that she be declared to own an undivided one-fourth interest in the note and trust deed.
The pretrial order signed by the judge recites that the issues of fact disclosеd by the pleadings are: “Did George Brandt hold a one-half interest in the real property and the note and trust deed which is in the escrow and the moneys which have been paid for the purchase of this real property as trustee for Barbara Livernois?” (Italics ours.) or as trustee for Margaret Brandt?
The trial judge filed a memorandum opinion finding that Wallace was the equitable owner of an undivided
one-half interest
in all the rеal property and a one-half interest in any rights accruing under the contract for its sale; that George Brandt held such one-half interest as trustee for Wallace prior to the death of Wallace and also prior to the marriage of Wallace to defendant Margaret Brandt, and that such undivided one-half interest passed to his heirs at law, Margaret Brandt, his wife, and plaintiff Barbаra Livernois, his daughter, and that each of them is entitled to an undivided one-half interest of the share of Wallace or a one-fourth interest in the whole;
Findings of fact were then signed by the trial court, specifically providing that in the year 1957 George Brandt declared himself trustee of an undivided one-half interest in certain described real property (parcels No. 2 and No. 3) for the benefit of Wallace George Brandt; that Wallace expendеd time, skill and money upon the improvement of said real estate and accordingly said oral declaration of trust was partially executed. It then found that about January 17, 1958, Wallace transferred, in trust, the legal title to parcel No. 1 to George upon the agreement by George that he would hold the same in trust for Wallace and that he does now so hold it. It then found that the entire рarcel No. 1 (not one-half, as heretofore alleged and specified in the pretrial order) was the sole and separate property of Wallace, and this interest vested in plaintiff Barbara Livernois and defendant Margaret Brandt individually, each having an undivided one-half interest in it, and directed that it be included in and inventoried in the estate of Wallace and distributed according to law togethеr with all moneys paid or agreed to be paid by the Jacksons under contract of purchase.
The judgment provides that George should execute deeds of such property to the administratrix of Wallace’s estate to effectuate a transfer of such interests. The judgment then provides that should said real property or the proceeds from the sale thereof be disрosed of prior to the judgment’s becoming final, plaintiff have and recover from Margaret Brandt or George F. Brandt judgment for an amount equivalent to her proportionate interest in said real property and the proceeds thereof, said amount to be determined by the appointment of an appraiser by order of the court and that the court retain jurisdiction to make such further orders as may be necessary to effectuate the enforcement of the judgment.
Judgment was entered that plaintiff be declared to be the owner of an undivided one-fourth interest in parcels No. 2 and No. 3 and the owner of a one-half interest in parcel No. 1 and a similar proportionate share in the note and trust deed and money heretofore paid on said property, and that the court retain jurisdiction to make further orders.
The complaint and pretrial order alleged that it was the intention of both Wallace and George that George should hold an undivided one-half interest in sаid property as trustee for Wallace, and upon the death of Wallace, Wallace’s interest devolved upon plaintiff and defendant Margaret Brandt, equally, as his heirs at law. Therefore, under the pleadings and pretrial order, plaintiff claimed only a one-half interest therein, leaving one-half of that one-half to defendant Margaret Brandt and accordingly defendаnt George F. Brandt would be the owner of the remaining one-half interest. They proceeded to trial on this theory. The oral opinion so provided, but the signed findings and judgment did not so provide. For the first time, the trial court found that George held all of parcel No. 1 (97 acres) in trust for Wallace Brandt, and declared that George held an undivided one-half interest in the remainder (parcels No. 2 аnd No. 3) which would result in awarding plaintiff one-half of parcel No. 1 and one-fourth of parcels No. 2 and No. 3.
It is the general rule that a plaintiff must recover, if at all, upon the cause of action set forth in the complaint and not upon some other cause which may be developed by the proofs.
(Reed
v.
Norton,
In answer thereto, plaintiff argues that the pretrial order was sufficient to support the order and it being a declaratory relief action the court was authorized to make the order rendered or, if improper, plaintiff suggests that this court might
Defendants concede that with a reduction of plaintiff’s interest in parcel No. 1 to a one-fourth interest, a formula for the distribution of the entire procеeds would be more workable in the interpretation of the decree in which a one-fourth interest in the entirety could be appraised in the estate.
The testimony in respect to this property’s being held in trust for the benefit of plaintiff is not entirely satisfactory or convincing. The evidence is uneontradicted in this case that George P. Brandt held legal title to all of the real proрerty at issue herein at the time of the death of Wallace George Brandt. The presumption that the holder of legal title owns the full beneficial interest in the property can be overcome only by clear and convincing evidence.
(Estate of Schechtman,
The testimony of George Brandt was that he was the legal titleholder of the entire acreage; that parcel No. 1 (97 acres) did belong to Wallace and Wallace deeded it to him in 1958 and he and Wallace farmed all the property together; that he bought parcel No. 2 (100 acres), the alfalfa land, in 1916; that parcel No. 3 (320 acrеs) was owned by George and
George Brandt further testified that Wallace had a discussion with him about deeding parcel No. 1 to George in trust so plaintiff Barbara Livernois “could not come in for one penny of his money”; that George agreed to it and that same day a deed was made by Wallace to George; that it was agreed between Wallace and George that when they came to sell all three parcels, they would sell it all, even though it all stood in George’s name, and each would receive one-half of the proceeds; that the reason Wallace put parcel No. 1 in George’s name was because he did not want Barbаra to have any of it. He then said that he did not consider Wallace a one-half owner of the entirety, but that he owed him something for all the work and money he (Wallace) had put into the ranches (several thousand dollars); that he built a house for Wallace on parcel No. 1, without pay, and went fifty-fifty on all their dealings; that they sold the property and each received a check for $12,500 downpayment and two other checks for $5,000, and later, under some claimed joint tenancy agreement filed in escrow, George received a check for $5,000 and the other joint tenant, defendant Margaret Brandt, received a check in a similar amount. There was evidence that in June 1957, before the sale, George and Wallace each received a check for $5,000 for rental of the entire acreage.
The record is not clear, but George testified that Wallace and George made a joint tenancy deed of the property sold providing that if one died all the balance due went to the other, and the escrow clerk “tore it up” and this same day George “signed it over to Margaret.” George testified that he agreed that if anything happened to Wallace he would see that Margaret would receive his one-half share of it. George
Margaret Brandt testified that she was married to Wallace, once in Mexico on August 2, 1957, and again in Nevada on July 25, 1958. She said that George and Wallace discussed this property on many occasions in her presence; that she was sure they went fifty-fifty on the division of the proceeds and on farming, and that all of the property was involved ; that they agreed to go fifty-fifty on the proceeds of the salе; that in January 1958 Wallace deeded parcel No. 1 to George, and she heard Wallace say on many occasions that he did not want Barbara to have any of his property because she hurt him in testifying in his divorce action.
She testified that she and Wallace made out a mutual will after their marriage, but lost it; that 320 acres (parcel No. 3) was George’s property; that he held title to it but he agreed to give or had given Wallace a one-half interest in it in 1956.
Barbara Livernois, plaintiff herein, testified that the last time she saw her father was in 1957; that he visited her then and said, “I will know when you are in trouble and I will always be here to help you”; that she never saw him thereafter, but did go to his funeral. No testimony was given by her indicating that Wallace ever said anything about holding any property in trust for her or anyone else. She admitted writing a lеtter to Wallace, marked exhibit A, in which she said: “Before I was married I told you that I wanted no part of George and Pauline’s money and that goes for your money. ’ ’
One witness testified that she knew George and Wallace for many years; that she knew they were leveling the 40 acres of parcel No. 3 and she heard conversation about plaintiff Barbara Livernois, after the divorce of her parents, and Wallace was upset because Barbara berated him in the courthouse hall, and Wallace said many times that he did not want Barbara or her mother to have any part of his property.
Defendants contend that the findings of the trial court are based upon evidence that is not clear and convincing and will not support the conclusions and judgment reached.
If there was any evidence that George held any of this property in trust, all of that evidence was to the effect that it was in favor of, or for the benefit of, Margaret Brandt and that it was the intention оf both parties to the agreement that plaintiff should
not
partake of it or its proceeds.
(Tapia
v. Demartini,
The only theory which has evidentiary support would be that Wallace did own a one-half interest in the returns from the sale, as agreed upon by Wallace and George; that by reason of the death of Wallace, who died without executing a will, and the property being the separate property of Wallace, plaintiff Barbara Livernois had a right of inheritance to a specified interest in said returns, at the time of his death, and accordingly that one-fourth interest should be determined and inventoried in his estate proceedings. The same may be said in reference to the defendant wife’s one-fourth interest in the estate, as ordered by the trial court.
Probate Code, section 221, provides: “If the decedеnt leaves a surviving spouse, and only one child . .. the estate goes one-half to the surviving spouse and one-half to the child or .issue.” This would leave the other one-half interest as property of defendant George F. Brandt.
The findings and decree should be and are modified accordingly. It should be and it is further found that should the returns from the sale fail, and the property return to the grantor, it is decrеed that plaintiff Barbara Livernois, the daughter, and defendant Margaret Brandt, the wife, have a one-fourth interest in the entire property as described in the deed and in the decree here entered. The provision for reten-tion of jurisdiction over the subject matter and possible appointment of appraisers is deleted from the judgment.
As thus modified, the judgment is affirmed; each party to pay own costs on appeal.
Coughlin, J., and Brown (Gerald), J., concurred.