61 Cal. App. 2d 694 | Cal. Ct. App. | 1943
Plaintiff, as administrator of the estate of Herbert A. Pierce, deceased, instituted this action to set
The real property and money around which this litigation centers was allegedly obtained by defendants about January 8, 1942. The father, Herbert A. Pierce, died on February 19th of the same year. Prior to his death and on September 26, 1941, decedent executed an holographic will leaving his entire estate in equal shares to his four adult children, who, in addition to both defendants, included plaintiff Mno Pierce, administrator of his father’s estate, and Mrs. Lillie B. McClellan.
The complaint alleged that during the last illness of decedent and approximately five weeks prior to his death defendants “fraudulently taking advantage of the incapacity, illness and weakness of mind of said Herbert A. Pierce, deceased, and through exercising undue influence upon said decedent, caused him to sign deeds to the aforesaid four parcels of property then owned by him to the defendants herein.” Then follows similar allegations as to the alleged activities of defendant Nellamae Pierce Brown in obtaining from her father the sum of $2,100 cash.
By their answer defendants generally and specifically denied the allegations of fraud, deception and undue influence alleged in the complaint, and by way of an affirmative and separate defense set forth that “each and every of the said transfers of real property and personal property were made upon valid and valuable consideration passing from and to these defendants and the said decedent.”
The cause was tried before the court sitting without a jury, resulting in a judgment against defendants adjudging and decreeing the aforesaid deeds to be null and void and directing defendants to convey said properties to the estate of their father, Herbert A. Pierce. Also by the judgment herein, the above mentioned sum of $2,100 cash was decreed to be part of the estate of Herbert A. Pierce and that the transfer of said sum to defendant Nellamae Pierce Brown was null and void. From this judgment both defendants have appealed.
It is true there was evidence contradictory of some of that just narrated; that the relationship existing between the decedent and his two children, named herein as defendants, was harmonious, kindly, friendly and affectionate, but there was also positive testimony to the contrary which, in addition to that hereinbefore recited, need not here be set forth.
Appellants contend that their father desired to favor them because the other two children on or about January 16, 1942, instituted proceedings for the appointment of a guardian of his person and estate, but there is also in the record evidence that such a proceeding met with his unqualified approval; that prior to the filing thereof his son and plaintiff herein, Mno Pierce, discussed with his father the advisability thereof and obtained his consent thereto. In any event, the guardianship proceedings were not instituted until after execution of the deeds and transfer of the cash here involved.
In view of the foregoing and where as here, appellants challenge the judgment on the ground that the record is barren of any substantial evidence to support the same,
Under strikingly similar circumstances judgments setting aside conveyances on the ground that they were obtained by fraud and undue influence exercised upon and against elderly persons were upheld in Payne v. Payne, 12 Cal.App. 251 [107 P. 148], and Mau v. McManaman, 29 Cal.App.2d 631 [85 P.2d 209].
It is only when evidence upon its face may justly
The judgment must therebefore be affirmed. It is so ordered.
York, P. J., and Doran, J., concurred.
A petition for a rehearing was denied December 31, 1943, and appellants’ petition for a hearing by the Supreme Court was denied February 7, 1944.