Weiner v. MullaneyWeiner v. Mullaney
Plaintiff instituted this action to obtain an accounting from her brother, George J. Mullaney, hereinafter referred to as “the defendant.” Also joined as a defendant was her sister, Marie Mullaney, sued as such because of her refusal to join as plaintiff. A prolonged trial resulted in the entry of findings and judgment in favor of plaintiff and against defendant George J. Mullaney, requiring said defendant to pay to plaintiff the sum of $14,887.04, together with interest, and certain alternative judgments for recovery of Exeter Oil Company and Mt. Diablo Oil Company stock or
The parties to this action are the surviving children of Agnes Mullaney, a widow, who in her lifetime owned certain real and personal property, consisting of an oil lease, stocks and cash. In 1927 the plaintiff married and left home, but the defendants continued to live with their mother until her death. Defendant Marie Mullaney taught school and was away a great deal of the time, but defendant George J. Mullaney, because of a “sleeping illness” requiring him to sleep 12 to 14 hours out of every 24, was unemployed for several years prior to his mother’s death, and remained at home at all times. By reason of his constant attendance at home he became familiar with and was fully advised of his mother’s finances and business affairs. He testified that when his mother became seriously ill in the early part of 1936 he conducted and managed her business for her and continued to do so until her death in January, 1937, at the age of 72 years; that during that time she gave him various sums of money without any restriction or limitation. In 1933 plaintiff and her family moved to London, England, and remained there continuously until November, 1937, except for two visits to the United States which plaintiff made in 1936 and 1937. While in England, plaintiff corresponded with her family regularly and they likewise with her. In the many letters which plaintiff received from her brother he continually advised her that their mother was going to put all of her property into the names of her children in equal shares, to wit, one-third each, in order to avoid probate and payment of inheritance taxes upon her death, and on several occasions stated that he needed plaintiff’s power of attorney to properly record and protect her interests, pay taxes, bond assessments, etc. In reliance upon these representations the plaintiff executed and delivered to her brother a power of attorney. He, in turn, forwarded to plaintiff in England various sums of money representing her one-third share in the proceeds received from a sale of a 5 per cent landowner’s royalty interest under an oil lease and, after the death of their mother, she was forwarded one-third of the royalty received from the lease. In 1938, after plaintiff’s; return to the United States, she requested of her brother additional money. He refused and stated that it was gone and that he had lost it in the stock market. She then discovered, among other things (a) that the real property
The trial court proceeded on the issues joined on the amended complaint, which alleged among other things, that Agnes Mullaney during her lifetime owned certain real and personal property, consisting of parcels of land in Kern and Los Angeles Counties, of an oil lease on property located in Kern County [Parcel 1], of stocks of the Union Oil Company, Consolidated Steel Company, Exeter Oil Company, Mt. Diablo Oil Company, and other corporations, and of cash, which properties were owned by the three children, plaintiff and defendants, in equal shares after their mother’s death and one-third of which was held by defendant “in trust” for plaintiff; that on November 5, 1928, Agnes Mullaney “signed and acknowledged” a deed to Parcel 1 “purporting” to convey one-half to George J. Mullaney, and one-fourth each to the plaintiff and Marie Mullaney, which deed was recorded by George J. Mullaney on April 24, 1936, to avoid probate proceedings and the payment of inheritance tax; that defendant “acknowledged in writing . . . by instruments subscribed by him, that said real property [Parcel 1], all the proceeds of oil and gas produced therefrom, and all personal property belonging to said Agnes Mullaney were held by him, one-third for the plaintiff, one-third for himself and one-third for the defendant Marie E. Mullaney”; that defendant sold a 2% per cent landowner’s royalty on Parcel 1 and refused to deliver plaintiff’s one-third to her; that prior to her death Agnes Mullaney assigned 184 shares of Union Oil stock to plaintiff, which George had recorded in plaintiff’s name on the company’s books and subsequently transferred these shares out of plaintiff’s name into his own, sold them and converted the proceeds; that Agnes Mullaney assigned to plaintiff and each of the defendants one-third of 1500 shares of Consoli
The answer of Marie Mullaney denied, on information and belief, the allegations of the amended complaint.
Defendant George J. Mullaney’s answer to the amended complaint, among other denials and allegations, denied that Agnes Mullaney deeded all the real property to the parties in equal proportions and alleged that on November 5, 1928, she signed, acknowledged “and delivered” a deed to Parcel 1, conveying one-half to defendant and one-fourth each to plaintiff and Marie Mullaney; admitted he sold the
2y2
per cent landowner’s royalty and refused to deliver one-third to plaintiff, alleging she was entitled to only one-fourth thereof; admitted he recorded a certificate of stock in'plaintiff’s name on the books of the Union Oil Company, subsequently transferred and sold same, alleging that the stocks were placed in plaintiff’s name “without consideration and merely for convenience”; admitted he opened the brokerage account, transferred 500 shares of Consolidated Steel to plaintiff, and subsequently sold said stock for $7,204.85, of which sum he invested $6,350.00 cash in 1000 shares of Electrical Musical Industries; that he then purchased “on margin” 3500 shares of stock of Exeter Oil Company and deposited the 1000 shares of Electrical Musical Industries, together with $894.95 cash, as security for said purchase; that the market price of both stocks decreased and the Electrical Musical Industries stock was insufficient security for the Exeter Oil Company stock purchased on margin, and it became necessary for him to
The findings of the court were, in the main, in accord with the ‘allegations and averments of the complaint. The case is before us on a bill of exceptions wherein the testimony set forth is somewhat meagre, but contains therein many of the plaintiff’s exhibits, numbered 1 to 40, and defendant’s exhibits, numbered A to Z and “AA.”
As one of the gromids for reversal, defendants urge that the findings, conclusions and judgment that plaintiff was entitled (a) to one-third of the landowner’s royalty and (b) to one-third of the proceeds from the sale of the 2% per cent landowner’s royalty are contrary to the evidence and law. The court found that on April 24, 1936, George Mullaney recorded the deed to Parcel 1 and informed the plaintiff that the property had been transferred to plaintiff and defendants. At that time and thereafter George J. Mullaney stated to plaintiff in writing that one-third of said real property and one-third of the rents and profits thereof belonged to plaintiff, one-third to Marie Mullaney, and one-third to himself. Upon the mother’s death, and until the institution of suit herein, George J. Mullaney collected the oil royalties from said real property and distributed them, except as to $153.81, one-third to each of them, pursuant to a written statement and promise that one-third of said royalties belonged to plaintiff and one-third each to Marie Mullaney and defendant; that on March 1, 1936, George J. Mullaney sold a 5 per cent landowner’s royalty on Parcel 1 and forwarded to plaintiff in England
The court concluded from these findings that plaintiff was entitled to (1) recover $3,225, with interest, from George J. Mullaney because of the conversion of the proceeds from the 2y2 per cent landowner’s royalty sale and (2) to a judgment providing that plaintiff was entitled to the net income permanently from Parcel 1.
We believe that the findings are fully supported by the evidence and the inferences reasonably dedueible therefrom. George testified, regarding’ the landowner’s royalty transaction, that he sold a 5 per cent royalty interest on Parcel 1 for $24,000 and later a 2y2 per cent for $10,000; that he never sent plaintiff any of the money received from the 2% per cent royalty sale; that he did not pay any of the royalties received for the months of December, 1936 and January, 1937, out of the money received from the lessee, Gilmore, but that he did pay said royalties out of other moneys, but he could not say from just what income the moneys were received; that in October, 1937, plaintiff received one-third of the royalty check and has received one-third of all other royalty checks received since that time because the royalty checks were made payable to all three and plaintiff refused to endorse the checks unless she received one-third; that the deed to the oil land, Parcel 1, was delivered to him by his mother, was kept in his safe deposit box and recorded April 24, 1936; that he has known since 1926 that there was oil on the property; that he did not tell plaintiff that the deed to the oil property gave him one-half and his sisters one-quarter each until the present action was filed; that in November, 1937, he burned all his mother’s cancelled checks, but on cross-examination he did not remember whether the cancelled checks were burned prior to plaintiff making a request for accounting. Defendant identified certain letters as those he had written and mailed to plaintiff while she was in London, which letters were received in evidence as plaintiff’s exhibits. Only the pertinent parts of several of these exhibits are set forth herein:
(a) Typewritten lett.er, dated April 20, 1936, containing typewritten initials “G. J. M.” at the end: “. . . there isn’t very much of the estate left but what, little there is I thought we should have and Ma wanted to put the ranches and house in our names before she ever got sick at all. . . . We don’t need any attorneys to look after our enormous holdings but if this is the way you want it, you can have all you want for your third. . . . Ma wanted to put them in our name so that in case anything did ever happen to her that they would not have to be probated. ... I have no idea of gyping you, as you are entitled to as much as I am, one-third, and one-third rightfully belongs to Marie, the same as it does to you and I. I wanted your power of attorney so that you wouldn’t be troubled with the bills, taxes, bond assessments and other expenses that come with them. . . . However, I didn’t see anything to your debits if the property was put in our names. . . . I hope I haven’t insulted you or got you sore, as after all, in all matters I think I am doing what is best for you. . . .” (Emphasis added.)
(b) Typewritten letter, dated August 6, 1936, containing typewritten initials “G. J. M.” at the end: “I’ll do whatever you say with your third (and not pressing the fact, but you already got your third out of the grand) don’t want to intimidate myself or influence you, but I think I could invest the amounts to advantage but you will have to say so first. Otherwise, I’ll just take your third and put it in your account at the Wilshire-Western Branch of the Bank of America. . . . I can sell the rest of our percents at the same price but I think we have sold enough.” (Emphasis added.)
(c) Typewritten letter, written in October, 1936, containing typewritten initials ”G. J. M.” at the end: ”1 was kind of surprised to get the second payment of the royalty dough last Thursday ... so as per your instructions I sent you your third of it ($1600.00) and through the same bank. . . . How does it suit you if we split this, or these checks four ways... and the other fourth, or Ma’s part we’ll use for running the house? ...” (Emphasis added.)
(d) Letter, dated February 25, 1937, containing no signature or initials: ‘ ‘ This is 1100 berries and I am sending you two more envelopes registered at different times so that all three will make Wednesday’s Normandie as I cabled you. . . . I am sending two more letters, one with 1100 more and theother with 1000 making a total of 3200 or two $1600.00 payments, the last two out of the 5 per cent I sold at 5000 each percentage less 1000 for the commission & escrow & permit charges. . . . Instead of making money for you as I could if you gave me a chance, I was trying to save you paying out half of it to get it. But its yours <& I had it put aside for you awaiting your orders & the cable today for the Dec. & Jan. checks. Can’t send you them as I haven't got them yet, but will instruct Gilmore to mail you, your third, of the amount and copy of the run sheets and mail it to you every month.” (Emphasis added.)
(e) Letter dated February 27, 1937, not signed or initialed: “. . . All the estate consists of is 600 bucks in one bank and 1500 cash in another and one mortgage that isn’t assigned, the rest of the stuff I transferred last spring, about the first of May into all three of our names. ... I have the copies of all the run sheets and when Gilmore releases the Jan. Dec. & rest of the checks, I’ll have them mail you your third directly with a copy of the run sheets for you, if you want it that way. I’d rather have it that way and then theres no chance of you not getting your third. I have a chance to sell 2% per cent more than 10,000 and that would leave us six per cent, but I don’t know what to do with the cash. I could have yours working to good advantage as I have Marie’s and mine, but that I told you was up to you, & since you didn’t instruct me to invest it, or put it to work I just left it in the hank. . . . Well, it is your dough & you can do with it what you want.” (Emphasis added.)
(f) Letter dated March 1, 1937, not signed or initialed: “The administrator is allowed so much by the court and the attorney so much too. Of course I’ll take what they allow me, as it is exempt from taxes, hut I, of course, will divy it up three ways as I have done with everything. . . . The places in Bakersfield and the place in Pasadena was deeded to us in 1928, and I didn’t record the deeds until April of last year. . . . There was some Union Oil Stock, some Consolidated Steel and some Exeter Oil stock, hut I also fixed that up last April, and it is alright, divided three ways. ... I have the dividends and also the rents from the places on the ranch and the proceeds of our cotton rent from the ranch, all deposited in a special account that is now about 1200 berries; and of course one-third of it is yours. ...” (Emphasis added.)
Also identified by defendant was a copy of his 1937 federal
George J. Mullaney contends that the statements contained in his letters do not create a trust because they do not evince an intent to create a trust; that they are simply statements of past events. Plaintiff, on the other hand, claims that she is not attacking the_ validity of the deed to Parcel 1, but maintains that these letters establish the fact that defendant intended to and did create a trust in one-third of the property left by their mother, whether probated or not, and that defendant is now estopped to deny her one-third ownership.
Despite the informality of the language, we believe the letters initialed by defendant sufficiently disclose a trust intent. It is well settled that no particular language or terminology is necessary to create a trust; nor need the word “trust” or “trustee” be used; nor need all the conditions of the trust be expressed in a single paper; nor need a trust in personal property be in writing.
(Luco
v.
De Toro,
(1891)
The next point raised by the defendants is that the letters, insofar as they relate to the landowner’s royalty or percent, are not sufficiently “subscribed” to come within the provisions of section 852 of the Civil Code, because some of the letters contain only initials and others are not signed at all. Section 852 of the Civil Code provides that “No trust in relation to real property is valid unless created or declared: 1. By a written instrument, subscribed by the trustee, or by his agent thereto authorized by writing; ...” That a
As in all eases where the intent is the test, there can be no hard and fast legal rule as to form. The statute here required that the instrument be “subscribed,” and what shall constitute a subscription must be determined in each case by the circumstances. Where, as in the instant case, defendant does not deny writing the letters, subsequently conducts himself in accord with the many declarations in his letters, and adopts the use of his initials “G. J. M.” as a signature when also writing to his sister Marie, we can but conclude that he intended his initials to constitute his signature. Signature by initials has been held to be sufficient under the statute of frauds and the statute-of wills. The fact that some of the letters in this case were typewritten rather than handwritten by defendant does not alter the situation. An instrument is deemed signed although the signature is typed, lithographed, rubber-stamped or printed. The foregoing methods of signature have been sustained in many cases.
(People
v.
Brussel,
(1932)
Defendants contend further (a) that the findings and judgment awarding plaintiff damages arising out of the operation of the brokerage account are contrary to the law and evidence, (b) that plaintiff’s conduct in revoking the power of attorney and personally taking over the account amounted to a ratification, and (e) that the court erred in failing to find on the issue raised by defendant’s answer that he transferred the 500 shares of Consolidated Steel to plaintiff without consideration.
The court found that plaintiff, while absent from this country, executed a power of attorney upon defendant’s representations that he would protect her interests and he was instructed not to use the power of attorney in stock market speculations; that Agnes Mullaney assigned and transferred to plaintiff and each of the defendants one-third of the 1500 shares of Consolidated Steel stock owned by her; that George Mullaney used the power of attorney, contrary to plaintiff’s instructions, to open a brokerage account for her, sold her 500 shares of Consolidated Steel for $7,204.85, and then purchased 3500 shares of Exeter Oil Company stock and 1000 shares of Musical Industries, authorizing the broker to hold said shares as security for the unpaid balance of $2,201.12 remaining due on the purchase price after applying all the proceeds received from the sale of the 500 shares of Consolidated Steel; that subsequently defendant directed 500 shares of the Exeter Oil to be withdrawn from the brokerage account and deposited to the account of Marie Mullaney; that on February 4, 1939, plaintiff was advised of the brokerage account when demand was made upon her by the broker to pay an unpaid balance or he would sell the stock to satisfy the balance; that plaintiff, solely for the purpose of salvaging a portion of the property purchased with the proceeds of the Consolidated Steel, sold sufficient shares of stock to satisfy the unpaid balance; that after deducting the proceeds of said sale there remained in said account 1400 shares of Exeter Oil Company stock, of the value of $525, and the sum of $811.01 cash;
Plaintiff’s testimony was to the effect that while she trusted her brother she wrote him not to invest her money and to put it in the bank; that during 1937 and 1938 she received money from defendant upon her request; that thereafter he refused to give her money, stating that it was gone, he having lost it in the stock market; that in 1936 her mother told her that she owned Consolidated Steel stock; that in July, 1937, she and her husband were going to Santa Barbara and she asked George what stocks she owned and he listed them on a slip of paper, which was introduced in evidence and reads:
“184 Union Oil 4336.00
500 Con. Steel 7500.00
1000 E. M. I. @ 6%
2000 Exeter 92% —1.05”
Plaintiff further testified that in January, 1938, she first learned of the brokerage account when she received an interest slip; that defendant told her not to worry about the account; that she revoked her power of attorney in June, 1938; that in January, 1939, she was advised by the broker that the account needed additional money to be properly margined; that she consulted her attorney and he advised her to sell only enough stock to cover the margin calls.
Defendant testified that he gave plaintiff the slip of paper above copied, that his mother gave him 1500 shares of Consolidated Steel [apparently indorsed in blank] and that he had 500 shares put into the name of each of his sisters “merely for convenience.” At this point, his March 1, 1937, letter was introduced in evidence. It contained the following declaration: “. . . There was some Union Oil stock, some Consolidated Steel and some Exeter Oil stock, but I also fixed that up last April, and it is alright, divided three ways....” (Emphasis added.)
The findings that Agnes Mullaney owned 1500 shares of Consolidated Steel stock and assigned and transferred one-third of this amount to plaintiff and that defendant directed the broker to sell the 500 shares of Consolidated Steel stock owned by plaintiff, are necessarily inconsistent with and therefore sufficient to dispose of defendant’s allegation in
These findings are supported by the evidence above reviewed. George admitted that his mother endorsed and delivered to him her Consolidated Steel stock. The trial court was not bound to accept his testimony that she gave him no instructions when she did so, and that plaintiff had no interest in this stock, but might infer from the slip of paper he gave plaintiff, the letter he wrote to plaintiff, and his acts in having the certificate for 500 shares issued in plaintiff’s name, that his mother had directed him to do so.
The case of
Griffin
v.
Payne,
(1933)
George was never authorized to sell or deal in stocks for plaintiff; to the contrary, he was specifically instructed not to do so, and his action in so doing constituted a violation of his duty and breach of trust for which he is liable.
(Pacific Vinegar etc. Works
v.
Smith, supra; Corbett
v.
Benioff,
(1932)
It appears from plaintiff’s testimony that she first knew of the brokerage account in January, 1938, and she then went to the broker regarding the account. We must accept this statement rather than defendant’s testimony that he told her of it in 1937. What she learned from the broker at this time the record does not show, but in view of her other testimony regarding the instructions she gave defendant—-instructions which this account violated—she was put upon inquiry at this time and charged with notice of all that an inquiry would have disclosed. Hence we cannot deal with the case on the assumption that she remained ignorant of the facts regarding the account after January, 1938. Defendant contends that she should at that time have closed out the account, and that, even if she may hold him for damages according to the rule above stated, she cannot recover anything on account of depreciation after that time of the stocks then in the account.
Defendants claim that the court erred in granting plaintiff judgment because of the conversion of 184 shares of Union Oil stock and in failing to find on the issues raised by his answer that the stock was placed in plaintiff’s name “without consideration and for convenience only.” His contention is that plaintiff never owned this stock and that this allegation of the answer was shown to be true.
The findings of the court on this subject are: That Agnes Mullaney in her lifetime owned 704 shares of Union Oil stock; that prior to her death she assigned 184 shares of Union Oil stock to plaintiff and on May 6, 1936, defendant caused said shares to be recorded on the books of the Union Oil Co. in plaintiff’s name and a certificate to be issued in her name therefor; that later, by the use of his power of attorney from plaintiff and without plaintiff’s consent or knowledge and without authority, defendant caused these shares to be transferred to himself, sold them and converted the proceeds to his own use; and that “by reason of the conversion of said shares of stock, as aforesaid” plaintiff has been damaged in the amount of the judgment. In support of this finding there is testimony from an assistant secretary of Union Oil Company, who produced the certificates for 368 shares originally belonging to Agnes Mullaney, attached to which was an assign
Defendants urge that the part of the judgment awarding plaintiff 1666 shares of Laguna Land & Water Co. stock or its value of $149.94 is against the evidence. Defendant testified that his mother owned 5000 shares of this stock, which was transferred into his name, and that he still had all of said stock. His declarations in his letters to plaintiff, impeach this testimony, and the court was entitled to believe the assertions that “everything was being divided three-ways,” and
Defendants further urge that the court erred in granting plaintiff $1000 for the alleged conversion of 5000 shares of Mt. Diablo stock. George testified that 6280 shares of Mt. Diablo stock were owned by his mother and that she turned over the stock to him; that he sold it for $3000 after her death. The testimony is clear that this stock was never given to defendant as his sole and separate property; it was merely turned over to him, he sold it and pocketed the proceeds. The court properly found in accordance with George’s declarations that the property was being divided three ways, and that one-third belonged to plaintiff.
As to defendant’s contention that the court erred in holding that Agnes Mullaney and the parties hereto agreed that during the lifetime of Agnes Mullaney the income from Parcel 1 should be divided in equal parts between Agnes Mullaney and the parties hereto, we direct attention to defendant’s letter of October, 1936. This finding is not vital, but other evidence also supports this finding.
Judgment affirmed.
Shinn, Acting P. J., Wood (Parker), J., and Shaw, J. pro tern.
Appellants’ petition for a hearing by the Supreme Court was denied September 1, 1943. Gibson, C. J., voted for a hearing.