*1 during repudiate but her administratrix did lifetime 1943; run and the the statute then commenced to action months thereafter. was instituted within a few accounting profits from the was had before distinguished bar, ap- Valleé, Paul member of the who was pointed findings approved referee. His the court questioned. are not judgment is affirmed.
Desmond, J., Wood, J., P. concurred. Appellants’ petition Supreme hearing by for a Court February denied 1946. No. Second Dec. Dist., Div. Three. [Civ. 1945.] TITLE (a Corpo AND INSURANCE TRUST COMPANY
ration), etc., as Executor LILY Mc Respondent, v. K. Appellant. GRAW, *2 Jarrott,
James S. W. H. Anderson and A. G. Ritter Appellant.
C. McDowell, McIntyre E. and Allan Faries M. Carson for Respondent.
WOOD, J. this rescission judg- action obtained ment, and the appeals. During pendency Title Snyder died and the Elizabeth appeal, the executor corporation, a Company, and Trust
Insurance Sny- Elizabeth plaintiff. will, been substituted has plaintiff. herein as referred to will be der apartment an 1942, plaintiff, the owner April 24, On conveying grant Angeles, executed deed house in Los part same tirhe and as At that property to defendant. a document as transaction, defendant executed the deed McGraw, I, Lily K. “Agreement Received, follows: For Value opera- money derived from the agree pay all promise Apartments, 979 management Palomar South tion California, Snyder. Elizabeth Avenue, Angeles, Oxford Los accounting reports whenever so re- I will furnish and an Snyder operate I quested promise to by Elizabeth apartment said house operate continue the business of consummated; apartment until house has been a sale of said sale, promise I to Elizabeth and the of said Ryland Snyder. Lily K. April Dated: McGraw.” transaction, part of the same Also at time and as a document as follows: “Amend- defendant executed another Agreement. Lily McGraw, for I, ment to K. value Above *3 Snyder, received, promise pay to to Elizabeth also known as Ryland Snyder, of Elizabeth the sum Three Hundred ($300.00) per a of the said Dollars month until sale Palomar until Apartments been or the death of the has consumated Ryland Snyder. Elizabeth After the demise the said said Snyder, promise pay quarter I of the Elizabeth one income expenses Depken after all to Annie have been deducted is, Depken, sisters, quarter Heiser and Emma E. one operation management the income from of the said the Apartments. Palomar said Elizabeth After the death the Ryland Snyder, and in the event of a sale of the said Palomar Apartments, pay quarter I promise to one Depken Depken. said sale Emma E. to Annie Heiser and April Lily Dated: McGraw.” K. gave monetary deed, for
Defendant no consideration but therefor was services she asserted that the consideration taking in plaintiff plaintiff’s had rendered to and to sister care they of them when be ill, services to rendered taking plaintiff. in her care of the thereafter, At property the time the deed made and During the four per leased to one tenant for month. $300 following making change months deed there was no go did not and defendant management property rent, during In that time. property, nor collect October, monthly until September, 1942, thereafter payment request, his check tenant, sent plaintiff’s was received When the rent of the rent the defendant. amount so received for the gave,her defendant she check plaintiff. October, 1943, resumed the collection In taxes, plaintiff paid After made rent. the deed was against monthly $110 installments on encumbrance bills, property, repair except two hereinafter re- and the was made until ferred to. From the time the deed the contro- months, versy arose, period approximately herein every week, property went to the about and the defendant went to the twice. September, 1943, plaintiff she,
In plain- told defendant that tiff, income, needed more that she desired to refinance the she, required plaintiff, only so would be per $110, $75 month instead of and that she desired to borrow $2,500from a bank and to include that amount as an additional against encumbrance property. replied Defendant comply request. would not Thereupon friendly parties relationship between the ended. On Oc- 8, 1943, tober counsel for sent a letter to stating defendant desired to sell the immediately if she could not making refinance it. Prior to according the deed, plaintiff’s testimony, plaintiff and de- fendant had selling conversations relative to the property, told defendant sell “when she could not less than a certain sum.” October, 1943, In controversy after arisen, defen- repairs dant caused to be the exterior walls of the building paid $750.50 therefor from funds. On own 5, 1943, plaintiff’s November counsel sent another letter to stating that he desired to confer with particularly with reference to a sale of the property. On 12, 1943, plaintiff November served written notice of *4 upon rescission defendant, which notice was as follows: “No- tice of Rescission. To Lily K. HcGraw: You please will take notice that undersigned, Snyder, Elizabeth hereby does agreements rescind and all by heretofore her with you and under and virtue of the terms of which she con- veyed you the real property known as the Apart- Palomar 394 California, Angeles, Los Avenue,
ments, 979 Oxford South [Description]. follows: particularly described as and more undersigned to re- offers will further take notice You under you everything which she has received value store to Dated you do likewise. agreement, upon condition Snyder. Faries November, 1943. Elizabeth day this 12th Attorneys for Elizabeth By McDowell, E. McDowell, C. & ’’ Snyder. roof on defendant installed new January, 1944, a In from her own funds. building paid therefor $350 acquired by plaintiff in involved was here years age defen- when the deed to was Plaintiff attorney by the prepared made. was dant was The deed signed counsel) and it was (other than had been Plaintiff and defendant presence. in his deed, years making good prior to for several friends They plaintiff. each the confidence of visited many years. On frequently period other over a several Sunday including practically every period occasions, herein, years controversy approximately preceding four invitation, home for dinner. plaintiff, upon at defendant’s stayed at ankle was broken in de- When she About after home three weeks. fendant’s about fall, injured as a result of she went defendant’s had been there, under the care of about home and remained money Plaintiff had lent to defendant on several seven weeks. repaid by amounts. loans de- occasions various declined fendant, except $150 the last one of which According offered it. to receive when defendant reciprocal there plaintiff’s testimony had been kindnesses be- all them, and the of assistance “was not one- tween matter for 18 sister lived at defendant’s home Plaintiff’s sided.” during months, time defendant rendered services which taking According testimony of the sister. to defendant’s care plaintiff’s request. Plaintiff such services were rendered at request. Although make testified that she such defen- did “plenty” owed her the time dant testified that sister death, she sister’s also testified she owed the sister which after the $72 amount death sister. further, trial, plaintiff said, at the
Defendant- testified “I made, just at the time the want to do like doing house,” I have been that she wanted *5 the as she had done payments” on house “managing the keep that, said at deposition, testified before. In her defendant “management” the the of time, she wanted said At made. just the deed was property as she had had before “management” should the trial said that word defendant the have that deposition, but it should been not have been in the receiving she was to bills because she would continue the she had been the income. testified that not Defendant also any time, plaintiff had willing property to sell because gave to property told her when her that she home; her that keep wanted to it for a and told her many give apartment going times that she was to house to defendant. many
Plaintiff on that defendant told her occasions testified man, that a certain friend whom had had transactions, try get real estate her property would to after death, her way keep getting him from that to would it get my only, be “a transfer it to out of name of not out my jurisdiction—I juris- do not I know whether should call it ’’ my diction—but not out of name. Plaintiff testified further many that defendant disparaging had so remarks about (plaintiff) moral of man that did character that she any her that property go person want to a kind; that prevent man, she made the deed to that and others had trying get who been property, getting it; her from give that she never told she the defendant that would to her; and in provision agreement that addition in the (the get that her Depken sisters) cousins one-fourth should property, provided they in her will that should have the residue of her estate. alleged
It was in complaint, among things, other that at and before the great time made, plaintiff the deed was confidence defendant; defendant, purpose for the that persuading plaintiff convey her, represented attempt that another friend would to obtain title to the property upon plaintiff; thereupon, the death upon the of defendant, advice purpose preventing person such other obtaining property, reason her trust convey prop- confidence did erty to therefor; without consideration at the same part time and as same defen- transaction (hereinabove dant writing executed certain to as referred agreement and the thereto); amendment that at said time writing and believed that said to read plaintiff was unable conveyed title which she conditions on fully expressed the it defendant; plaintiff understood management she should have provided had, had theretofore manner as she same in the thereafter sold it be would to sell she desire and should that, but did not her, if she sell delivered *6 as the trustee by defendant be held upon death would it plaintiff de- agreement; that forth in the purpose set but defendant refused property, to sell the proposed sired and right plaintiff’s and denied to permit plaintiff to sell it to com- of defendant to it; by reason of refusal sell and that plaintiff rescinded agreement, the ply with the terms by her with defendant any agreements theretofore and all quoted) upon (hereinbefore of rescission and the notice served defendant. representation relationship or trust
The answer denied alleged the deed was alleged complaint, that in as alleged It was given adequate consideration. for valuable and of failure that reason to further in the answer Depken parties E. join Depken and Emma as Annie Heiser to plaintiff was not entitled institute or the action that to maintain the action. allegations in
The found substance that court true, mentioned, except above that it made complaint, alleged representation have finding no as to been made deed, plaintiff make the nor did by defendant to induce read, plaintiff that was unable to but found that she was find readily by eyesight. The unable read reason of defective conveyance court found that the de- also trust, fendant the said was that amend- (above quoted) of ment thereto constituted a declaration an which, otherwise, of express under the terms and not trust property; title held that defendant had right, or property, except no title interest in the as such trus- trust; provisions tee and under the that pro- said under the power given visions of said trust no of sale was plaintiff right direct, at all times retained control property; and authorize sale that on November agreements rescinded and revoked all including her with defendant, trust; said declaration that $1,100.50 defendant had from her own repair- funds ing the property; that was entitled to maintain the E. Depken Heiser and Emma joining action Annie without Depken void parties; of trust was and that said declaration provisions under 715 and Code of sections (apparently Civil this refer- Procedure it was intended that Code).. ence should be the Civil judgment was the owner of said real property subject repayment lien for the to a of defendant $1,150.50 to her of this (apparently said it was intended that $350) $1,100.50, amount should $750.50 be the total of per interest per at 7 annum from the dates when cent payments, $1,100.50, various aggregating were made.
Appellant asserts that the evidence was not sufficient to support finding did not understand agreement. finding form, was that but fully believed expressed the document the conditions on which conveyed title, and that she understood that agreement provided management that she could have the operation and receive the from the in the same manner as she had theretofore. The evidence was support finding. sufficient to
Appellant conveyance asserts that the was for a val *7 uable finding consideration contrary and that the to the is support without the evidence. $300 The which was plaintiff month, each being the rent which received was from the involved, money plaintiff was which was agreement entitled before the was made. Defendant did not agree taxes, the interest on the incumbrance make or to repairs. Appellant argues that the most valuable consider ation was board, the care and attention plain furnished to tiff. The evidence as to the consideration and as to the reason for conveyance the conflicting and different inferences might be drawn therefrom. There was evidence to the effect that reciprocal there were kindnesses parties. between the The evidence was support finding. sufficient to that
Appellant voluntary express contends that no trust was created or intended to be by parties. created the Her argument is that the deed, word “trust” was not used in the the agreement, the testimony, complaint, the or notice the of rescission; that the agree effect of the amendment to the ment was to transform obligation ac defendant’s from one to count for the apartment house an uncondi promise tional to pay per $300 month until
398 death; that he or until
should sold pay $300 of defendant to promise “no doubt preferred” equivalent than an amount per month life rather possibility might vary considerably, with which income, nothing all; that it the intention becoming of and and her services to rewarded for defendant be plaintiff’s sister. stated, that the complaint allege,
The did as above during plain if the was not sold understood that No “as trustee.” by tiff’s life would be held particular necessary, however, in order to create language is necessary in create a trust trust, order to and it is (Weiner be used. the word or word “trustee” “trust” Hardi 704]; 631 P.2d Mullaney, Cal.App.2d 59 v. [140 226].) 318 P.2d Corbett, Cal.App.2d 310, son v. [130 arising obligation personal out of a voluntary “A an trust is by, in, voluntarily accepted one reposed confidence and 2216.) (Civ. personal Such Code, benefit of another.” § and existed confidence between of relationship. transaction arose out Section of such voluntary . cre provides “. . is Civil Code trust indicating, ated, trustee, any words or acts of his trust, or certainty: with acceptance reasonable 1. His consideration, acknowledgment, upon his sufficient made beneficiary and, subject, its 2. existence; purpose, The provides the trust.” Section 2221 Code Civil voluntary created, “. . . a trust is the trustor and bene as to ficiary, by indicating trustor, words or acts certainty: on part reasonable 1. An intention trustor and, subject, to create a trust, purpose The beneficiary agreement of the trust.” The amend agreement ment to the executed time defendant at the deed, a part she received the those documents were deed making transaction. whole transaction as deed, negative any in and the amendment conveyance ference that an absolute property to defendant. manner which the *8 managed was operated nega after the deed was made also tives such an inference. only Defendant went to the during period twice controversy of 17 the months before arose, herein nothing and she repair or the maintain friendly until after their relationship ended.
399 might try persons to ob- The evidence to the effect that other making purpose in the tain indicated a deed. appear It that there reasonable basis does not why plaintiff argues, preferred,” appellant “no as an doubt pay unconditional promise per of defendant month to $300 property. prop- rather than income from the erty years, producing per had been month for and the $300 prospect that it would produce continue to that amount was good—the -tenant, according evidence, good to the was a one. On contrary, prospect security as of better financial plaintiff by having promise of defendant to $300 per month, there was evidence that defendant had borrowed money at various times from plaintiff, money that she owed plaintiff’s sister, unpaid and that for some time there was an judgment against her. sup- The evidence was sufficient to port finding express trial court that there anwas trust. voluntary trust, expressly made irrevocable
by agreement creating it, by plaintiff. could be revoked Section 2280 of provides: the Civil Code “Unless expressly made irrevocable by creating trust, every instrument voluntary by trust shall be revocable by writing the trustor filed with the trustee. When a voluntary trust is revoked trustor, the trustee shall transfer to the trustor its full title to the trust estate. ...” Prior to when said section 2280 amended, right there was no of revocation of a vol untary right trust unless the expressly. was reserved In Fernald v. Lawsten, Cal.App.2d 26 742], P.2d under [79 circumstances similar to those in case, except as language to the agreement, 560) (p. it was held the trustor right had the to revoke the trust. It was also held (p. therein 559) that the record ample contained evidence to support finding that the transaction constituted a volun tary trust, and that in construing real agree nature of the ment proper it was to admit evidence circumstances (p. conditions 563) under which the and deed were executed.
Appellant asserts the effect of section 2280 of the Civil Code is provisions limited of section 2250 the Civil provides Code which that: provisions “The of this chapter [Secs. apply only express inclusive] trusts, created for the benefit of another trustor, than the is which title to trust trustee; vested *9 400 administrators, executors, and including, however, those only one to benefit was not the guardians, such.” Plaintiff as Annie agreement By
by the the terms trust herein. from the Emma to benefit Depken Depken E. were Heiser and who creates plaintiff. One upon the death manifests an beneficiary if he voluntary sole trust is not the (Bixby contingent in others. intention to interest create a ; 451, 452 P.2d Hotchkis, Cal.App.2d 445, v. 58 [136 597] noted, Trusts, 1039.) It is to be p. Restatement of Law of agree- however, Lawsten, supra, the trust that in v. Fernald trustor, the court but ment was for the sole benefit said section held trust revocable under that the Depken Heiser Appellant Annie further that contends trust, alleged Depken, beneficiaries under the Emma E. the action parties and that necessary indispensable thereto. parties as could maintained without them not be may re a trustor provisions Under 2280 of said section section, without trust, provisions voke a within of that Furthermore, those benefi consent of the beneficiaries. they no agreement, and parties ciaries were not any in have would not interest The trustor terest therein until the trustor. the death of appellant is not commenced the action. This contention sustained.
By conclusions, necessary to it is not reason of the above appellant discuss to the effect that the other contention upon alienation transaction a restraint does not constitute property. judgment is affirmed. Desmond, J.,P. concurred. 2250 of the By terms of section
SHINN, J.I concur. including succeeding chapter, Code, sections of Civil for the express trusts created 2280, apply only to section argues trustor, benefit of another than the latter section contained provisions for revocation benefit trust was applicable here because the are not original section others. Under of the trustor as well as for its after revoked the trustor a trust could not be beneficiaries, unless except by consent of all acceptance, power of revocation reserved the the declaration of trust section was that implication clear the trustor. The 401 beneficiaries, all by the consent be revoked trust could statutory limita- in the absence generally which is the law 104), ed., 7th vol. Trustees, § (Perry on Trusts tions had been trustor If the in California. and there are none (Bradbury the trust revoked beneficiary, have sole she could Law- v. 777]; Fernald P. (1892), 93 v. McClure Cal. [28 and conse- 742]), P.2d Cal.App.2d 552 (1938), sten [79 beneficiary, as quently interest could revoke it own amended *10 Under though even other beneficiaries. there were all other to revoke power section 2280 she had the beneficiaries. judg- of the for affirmance grounds
There are additional two plain- subject the construction findings ment. The are understanding, tiff concurred with executed the deed agreement, could di- by defendant, plaintiff, under entire any time and that property rect a sale of the proceeds Consistently would be her. meager, writings
testimony subject, on the which signed by circumstances of the case tended defendant and the understanding strongly prove such an had parties writings. plain- and that both As so understood the right tiff require property sold, had the be right a trust, to revoke the since the sale of the payment her would revoke or termi- nate it. ground findings
The second is that the established defen relation dant’s as trustee of a constructive trust. She refused to allow a sale promise, thus violated her which was a prop material for the transfer inducement erty to her. a equity Under these circumstances court of will decree the to be held trust and direct that it reconveyed. (Lyttle Fickling (1945), ante, be v. p. 383 842].) Any P.2d [164 and all adverse claims of defendant under the deed and the when vitiated it was only established interest in the was that of a trustee under a constructive trust.
A petition rehearing 26,1946, January was denied appellant’s petition hearing Supreme Court was denied February 25, 1946.