Pomeroy v. Collins

This is an action in equity, brought by the executor of the estate of Mathew Kelleher, deceased, to set aside and compel the cancellation and annulment of four certain trust instruments executed by said Mathew Kelleher, on the ground that said Mathew Kelleher was, at the time he executed the same, mentally incompetent and of unsound mind. It is claimed and alleged that the execution of said trust instruments were induced and procured by fraud and deceit practiced upon said Mathew Kelleher by appellant George D. Collins, Sr., whereby said Kelleher conveyed and transferred to said George D. Collins, Sr., as trustee, certificates representing 910 preferred shares of the capital stock of the Pacific Gas and Electric Company, a corporation, and certain described real property fronting on Folsom Street, city and county of San Francisco, of the aggregate value of not less than $85,000, all of said property being at the time of his death the property of said Mathew Kelleher, and constituting property belonging to his estate. The complainant also prayed for an order directing the said George D. Collins, Sr., to reconvey and retransfer said real property and stocks to the executor of the said estate. The trial court annulled' said trust instruments and granted relief in accordance with the prayer of the complaint. The appeal taken by George D. Collins, Sr., is from the decree as thus rendered and is joined in by intervener, Helen H. Walsh. The other defendants not being beneficially interested in the result of the action did not join in the appeal.

The trust instruments will be identified in the order and by the same letter stamps that were placed upon them by the trial court. Exhibit “A” purports to be a “Declaration of Trust and Assignment of Stock,” and bears date May 25, 1921. By its terms Mathew Kelleher assigned, transferred, and conveyed to “George D. Collins, Sr., as trustee, and upon the uses and trusts hereinafter specified, 910 preferred shares of the capital stock of the Pacific Gas and Electric Company, a corporation.” A description of the stock is therein set out. The instrument bears the indorsement of and recites the delivery of said stock by said Kelleher to

“The said trustee to have and to hold said 910 shares of stock upon the express trust to pay the dividends thereon to said trustor until such stock is sold and to sell, assign, transfer and convey said stock or any part thereof to the purchaser or purchasers and to dispose of the proceeds of such sale or sales as follows, to-wit: To Helen H. Walsh, of West Summerville, Massachusetts; Mrs. Margaret O’Neil, of Boston, Massachusetts; Julia H. Pomeroy, Parish of Drischane, County Cork, Ireland; Patrick 0’Reardon, Parish of Drischane, County Cork, Ireland; $1000 each.

“V.

“All reversionary interests in the proceeds of said sale of said shares of stock, resulting from the death of a beneficiary or other cause and the amount not herein before disposed of, shall vest in said trustee pro se, and not in trust. [Italics supplied.]

“In witness whereof, I have hereunto set my hand the day and year first above written.

“Mathew Kelleher.

“Witness:

“Geo. D. Collins, Sr.

“I hereby accept the foregoing conveyances and trust for the purposes therein specified.

“Dated this 27th day of May, 1921.

“Geo. D. Collins, Sr.”

Exhibit “B” is a deed and declaration of trust executed May 26, 1921, whereby the Fulton Street real property is granted and conveyed to said George D. Collins, Sr., as trustee, “to have and hold in fee absolute upon the express trust nevertheless to sell and convey said property and to dispose of the proceeds” as follows: To pay all debts and the expenses of his last illness and funeral expenses; to pay to the Reverend Father McDonald, chaplain of the Holy Cross Cemetery, the sum of $250 for masses for the repose of his soul; to spend $500 for a monument to be erected at his grave and whatever sum may be necessary for perpetual care of the grave. The names of the same beneficiaries set out in exhibit “A” are restated and each is given an additional $1,000. The reversionary interest clause and the “pro se, and not in trust” clause are repeated. The exeeu

Exhibit “C” is a declaration of trust and an assignment of stock and precisely the same in substance and form as exhibit “A” except the “pro se, and not in trust” clause is omitted and in lieu thereof (after providing for the payment to the same beneficiaries named in the trust instruments bearing date May 25th and May 26th respectively) the following clause appears: “To dispose of the remaining amount of the proceeds of said sale in accordance with the instructions heretofore given said trustee by said trustor.” [Italics supplied.] It contains a clause providing for the payment of debts and expenses which is not found in exhibit “A.” The execution is the same as in the other trust instruments. It bears date May 27, 1921.

Exhibit “D” is a deed and declaration of trust and repeats the names of the beneficiaries and the amounts of the benevolences set out in the trust instrument marked exhibit “B,” by giving to the Reverend Father McDonald an additional $250 for the saying of masses for the repose of his soul, and by setting aside an additional $500 for the erection of a monument at the grave, and by giving to Helen Walsh, Mrs. Margaret O’Neil, Mrs. Julia H. Pomeroy, and Patrick O’Reardon an additional $1,000 for the third time, making a total of $4,000 to each. It is precisely like the trust instrument marked exhibit “B” except the “pro se, and not in trust” clause is omitted, and like its companion instrument it directs the expenditure of the remaining amount “in accordance with the instructions heretofore given said trustee by said trustor.” The execution is the same as the others and the day of execution is given as May 27, 1921.

The oral instructions which Mr. Collins claims were given to him by Kelleher on May 23, 1921, and which were afterward reduced to writing by Collins, were to be a guide for him in the distribution of the estate. According to Collins’ testimony the oral instructions given by Kelleher contained directions which were not to be disclosed to Kelleher’s friends or made public. These instructions purport to have been acknowledged by Collins before a notary public on May 26, 1921. Omitting the formal parts, the instructions as prepared read:

“And whereas on said 25th day of May, 1921, the said Matthew Kelleher transferred said shares of stock with the exception of the fourteen shares evidenced by certificate No. 32310 to the undersigned as trustee by endorsement on the certificates and delivery of said certificates so endorsed, and subsequently said fourteen shares were issued to the undersigned as such trustee by said corporation together with eight hundred and ninety-six shares, making a total of nine hundred and ten shares (first preferred) of the capital stock of said corporation, issued to the undersigned as trustee for said Matthew Kelleher.

“And whereas in the said declarations of trust certain property is transferred to the undersigned pro se, to wit: proceeds of sale therein mentioned, the declared purpose of said Kelleher in that respect being to avert litigation by persons claiming without right to be his heirs or relatives and in that behalf to secure to and confer upon the undersigned the absolute and uncontrolled and independent judgment and discretion free from interference or control by any court in • determining from evidence adduced who if any person or persons are the surviving heirs and relatives of said Matthew Kelleher and in selecting from such heirs and relatives the person or persons deemed by the undersigned worthy of having and receiving said property and proceeds, the said Matthew Kelleher stating that to the best of his knowledge and belief, all of his relatives are dead but that if nevertheless any of his relatives survive him, they were to receive said property in equal shares according to said selection by the undersigned, the said Mathew Kelleher further stating that he was never married;

“And whereas said Mathew Kelleher on said 25th day of May, 1921, instructed the undersigned to dispose of and distribute said property to wit: said proceeds to the following persons and to the hereinafter named charitable organization in the proportions and upon the contingencies hereinafter stated, Now therefore I do hereby formally acknowledge and declare that the said property and proceeds conveyed to me pro se, by said Matthew Kelleher in each of said declarations of trust, were so conveyed to me upon the following instructions given to me by said Matthew Kelleher on said 25th day of May, 1921, to wit:

“I.

“To make final and conclusive determination from evidence adduced as to who if any are the heirs and surviving relatives of said Mathew Kelleher and thereupon to select from such heirs and relatives those worthy of having and receiving said property and proceeds, and distribute the same to them in equal shares. That should there be but one person so selected as herein stated, to distribute to such person all said property and proceeds.

“II.

“If there be no surviving relatives or heirs of said Matthew Kelleher, or none deemed by the undersigned worthy of having and receiving said property and proceeds, then to distribute said property and proceeds as follows, viz.: one-third thereof to Helen H. Walsh, Julia H. Pomeroy, and Patrick 0’¡Reardon,in equal shares, and the remaining two-thirds to be given equally to the Associated Charities of San Francisco for the charitable purposes of the organization, and to the relief of those of the Irish belligerents made destitute in County Cork, Ireland, in consequence of supporting the Sinn Fein warfare now prevailing there.

“III.

“Any residue of the said property and proceeds arising from the death of either said Helen H. Walsh, Julia H. Pomeroy or Patrick 0 ’Reardon prior to distribution to them as hereinbefore stated, shall be paid and transferred by the undersigned to the survivor or survivors, and if none, then said residue shall be paid one-half to said Associated Charities of San Francisco for the charitable purposes of the organization and the remaining one-half shall be paid to those of the Irish belligerents made destitute in County Cork, Ireland, in consequence of supporting the Sinn Fein warfare now prevailing there.

“IV.

“I do hereby accordingly undertake and agree to comply strictly with the foregoing instructions given me by said Matthew Kelleher on said 25th day of May, 1921.

“In witness whereof I have hereunto set my hand this the -26th day of May, 1921.

“ (Signed) Geo. D. Collins, Sr.”

The second amended and supplemental complaint contains three counts or causes of actions, the gravamen of each count being the practice and imposition of fraud and deceit in several forms by the defendant Collins upon said Mathew Kelleher, thereby inducing and influencing him to execute said instruments. The first count alleges unsoundness of mind on the part of said Mathew Kelleher and consequently the execution of said instruments by him was not his voluntary act; also that he lacked the mental capacity to understand the nature, purposes, and effect of said acts. That it was not the intention of said Mathew Kelleher to transfer the whole or any part of his estate to said George D. Collins, Sr., as trustee or otherwise.

The second count alleges the age of Mathew Kelleher at the time of the execution of said instruments to have been about seventy-nine years and that he was and for a long time prior thereto had been suffering from disease, loss of memory, and weakness of body and mind to the extent that he was unable to properly care for his property or affairs, and was at the time of the execution of the said instruments and for a long time prior thereto had been in a weakened and impaired condition of mind and body and was easily influenced by his acquaintances and by those in whom he reposed confidence. That said Collins was an attorney at law and maintained offices in the city and county of San Francisco. That Kelleher reposed absolute faith and confidence in said Collins and counseled with him with the intention and desire of making a testamentary disposition of his estate by will, but that said Collins advised, counseled, and cautioned said Kelleher, who was in a weakened and enfeebled mental condition, against making a will and persuaded him that he, Collins, better than the courts of law and better than he, Kelleher, was able to determine who were his surviving heirs and relatives, and the extent, if any, to which said heirs or relatives were deserving of his bounty, and promised said Kelleher that if he signed said instruments and transferred to him the said estate, that upon the death of said Kelleher he would make such a determination and would distribute his estate according to the merits of

The answer specifically denies each allegation of fraud and alleges that said Mathew Kelleher at and during all the times related therein was of sound and disposing mind and was free from any incapacity of any kind whatsoever, and that said instruments and transfers were prepared by the defendant in strict accordance and compliance with the express wishes, desires, and instructions of said Kelleher and not otherwise. That at all times he was of sound and disposing mind and acted freely and voluntarily in the exercise of his own will and judgment. It is denied that it was the purpose or the intention of said Kelleher or desire of said Kelleher to make a will, but that it was his effort to avoid probate proceedings and that the trust instruments were the product solely of the mind of said Kelleher and not of the said Collins. Defendant Collins disclaims any and all and every right, title, and interest, other than as trustee, in and to the real and personal property or any part thereof. His

The court found that each of the said instruments was executed by the said Mathew Kelleher without receiving any consideration therefor and that in the month of May, 1921, he was of the age of about seventy-nine years and for a long time prior to the execution of said trust instruments was physically infirm and his mental capacity was greatly impaired; that he was at all times of unsound mind; that because of such unsoundness of mind he was unable to understand, and did not understand, the nature, purpose, and effect of the said acts, or either thereof, in indorsing and delivering to said defendant the aforesaid certificates of stock and in executing and delivering to said defendant the aforesaid instruments in writing; that at none of said times did the said Mathew Kelleher possess sufficient mental capacity to perform or understand his acts or either thereof; that from the time of the execution of said instruments until his death, to wit, June 18, 1921, the impairment of the physical and mental capacities of the said Mathew Kelleher continuously increased; that the said George D. Collins, Sr., was aware of the mental condition of said Mathew Kelleher and knew at the time said Kelleher executed said instruments that he did not understand or comprehend the effects of said acts or either of them. It is further found that the said Mathew Kelleher did not on the twenty-fifth or twenty-sixth or twenty-seventh days of May, 1921, or any other time, intend to transfer, assign, or convey his estate, or any part thereof, to said George D. Collins, Sr., either individually or as a trustee for himself or for any other person or at all; that the said George D. Collins, Sr., well knew on the said twenty-fifth, twenty-sixth and twenty-seventh days of May, 1921, that said Mathew Kelleher did not intend to transfer the whole or any part of his estate to said defendant, either individually or as a trustee. It was specifically found by the court that all of the allegations of the first count of the second amended and supplemental complaint were true and sustained by the evidence. No finding was made as to the other two counts, as the finding on the first count made it unnecessary to find on the other two. Both are more or less interwoven with allegations of mental incompetency and the results that may flow therefrom. No

It may be said at the outset that a consideration of the contents of the four trust instruments and said instructions, and the manner in which they were prepared and produced, without recourse to any evidence whatever as to the mental competency of the person who executed them, would be a sufficient reason for a court of equity to scrutinize the transactions with great care and concern.

The early story of the life of Mathew Kelleher is told by Bartholomew Danehy, his lifelong associate and intimate friend, to whom he bequeathed $5,000 in his will dated February 9, 1914. Both were born in County Cork, Ireland, were about the same age, lived but three blocks apart, and were boys together in youth and companions throughout their long spans of life. Kelleher preceded Danehy by four years in arriving at Boston. In 1872 Danehy also left Ireland and came to Boston. For a time he and the companion of Ms youth lived in the same house conducted by Mrs. O’Neil, who is mentioned as one of the beneficiaries in the trust instruments. Danehy and Kelleher came to California together in 1875 and both located in the city and county of San Francisco. Kelleher engaged in the house-moving business, was a man of strong physical powers and possessed good intellect. Tie took care of his savings and invested them in sound securities. His habits of life were methodical and fixed, but very simple. He was cautious and very suspicious. He enjoyed his friends, however, and the associations of his boyhood and early life in Ireland seemed to have lingered in his memory up to a short time prior to his death. He never married and spent at least the later years of his life at a hotel. He associated with friends of his nationality, whose companionship he delighted in. By observing strict rules of frugality he slowly accumulated the property involved in this proceeding. George D. Collins, Sr., described Mathew Kelleher as a “miserly” person, possessing a very suspicious mind, “very illiterate, very uncouth, but very intelligent.” As he formerly knew him, he described him as a vigorous, healthy man, apparently very strong. He said he was always “very opinionated,” and intelligent in his judgment — “a man of very strong mind at that time. . . . There seemed to be in his mental makeup a rather sinister

As to the findings of the court that Kelleher was of unsound mind and was not able to understand the effect of the instruments which he executed there is an abundance of evidence in the record. As early as February 10, 1917, four years prior to his detention for the second time at the Lane Hospital, we find the following entry upon the clinical record: “Eyes: pupils small, reacts sluggishly. . . . Marked arcus senilis.” Also the following statement made by him upon his entry to the hospital on that occasion: “I am crazy. I cannot sleep. From my throat up is all bad. Is a tube running down from my skull which carries the pain around?” He then complained of “buzzing” in the ears. He was dizzy and believed that “One of his lungs had gone out of him entirely.” It was difficult to get his history because of his mental condition and deafness. He remained there only a short time and departed. Since that time he exhibited upon numerous occasions definite symptoms of both physical and mental decay or what is ordinarily known as senile dementia. Everyone who knew him well noted his mental and physical decline. Several persons who regarded and respected him testified that they would avoid trying to converse with him because of his constant mumbling and incoherent speech. He was very garrulous. His conversation with Mr. Collins but a day or two before he executed the instruments in question was alone enough to put him on notice as to Kelleher’s mental condition. Mr. Collins’ statement is that in discussing the disposition of Kelleher’s estate with him he told him that he wanted a part of it invested in munitions of war to be sent to Ireland to aid the Sinn Fein cause. He also wanted to do something to Lloyd George that would mean his extermination.

But this is not all. By a great preponderance of the evidence it would not seem possible that Kelleher could have appeared to anyone who undertook to carry on a conversation of any length with him to have been a rational person on May 25th, 26th, and 27th, or at any period thereafter.

In February, 1921, Kelleher re-entered the Leland Stanford or Lane Hospital. Doctor George H. Becker, a student interne at the Lane Hospital when Kelleher was admitted in February, 1921, and who was specializing in nervous disorders, had Kelleher under observation. Kelleher had intentionally taken boraeic acid internally which had been given him to be used for a chronic ear trouble, believing that if it was efficacious externally it should be helpful if taken internally, and said it had burned a hole through his stomach, and complained that the medicine which the nurse had given him was poison. Physically he presented the findings of an agitated man with the usual deterioration found in such a case. He had muscular weakness, senile tremor, and incoordination of his muscular movements as the result of senility. There was present a marked arteriosclerosis (hardening and thickening of the arteries) and enlargement of the heart. Also diabetes, chronic bronchitis, and emphysematous, a swelling produced by gas or air diffused in the cellular tissue. The witness defined senile dementia to be a breaking down or failing of the intellect as evidenced by lack of ability to judge facts, loss of memory, particularly for recent dates, tendency to unreasonable conclusions. Arteriosclerosis dementia is manifested by loss of memory, a tendency to forgetfulness, repetition, irritability, periods of amnesia. The witness was of the opinion that Mathew Kelleher in February, 1921, was suffering from senile psychosis, or dementia. The clinic record showed under date of February 15, 1921, that he was afflicted with diabetes. His case was diagnosed as “psychosis senile.” Wandering of the mind, sleeplessness, restlessness, and incoherency are frequent annotations made in the neurological records or charts. Kelleher had hallucinations and illusions of a most pronounced character. He complained of pains in the head, which he attributed to an injury he had received some years

The testimony of George D. Collins, Sr., was to the effect that Kelleher began to consult him as to making trust dispositions of his property some time in February, 1921, but nothing of a definite nature was done until about the twenty-third day of May, 1921. The active negotiations were then begun by Kelleher going to Collins’ office and by Collins visiting Kelleher at his home in the Mission Hotel. None of the papers in question were executed before the twenty-sixth day of May, 1921. Before this day, however, a number of witnesses detailed a long list of mental lapses on the part of Kelleher, beginning with several months prior to his death. He was prone to fall asleep in his chair, and was given to incessant mumbling, was incoherent in his speech, forgetful and listless, and the continuity of thought was broken. He had not engaged in any business for a long time prior to the time in question and had done by force of habit the simple things which he continued to do until the beginning of the illness which resulted in death. The one desire that was firmly fixed in his mind and which was the last to perish was the desire to accumulate money. His only business was to draw the premiums on his stock, which were paid quarterly, and he appeared very regularly to receive them.

Charles L. Barrett, assistant secretary of the Pacific Gas and Electric Company, who had known Kelleher since 1914, and negotiated with Mm in the purchase of his first stock in said company, gives a vivid picture of Kelleher as he appeared a short time before and at the time he began to dispose of Ms estate. He met him every time he called to

On the morning of May 26th, when Mr. Barrett arrived at his office, he found Kelleher there sitting in a chair in the worst cMll, as the witness described it, that he had ever seen a person have. He was actually shaking the chair. When he was able to speak he asked about the cheeks. He insisted that he saw the checks on one of the clerk’s desks, which was not true. He searched through his clothing, but could not find the check he should have had, and he seemed to have the idea that someone was trying “to do him up.” This check was given to him on May 20th, and was for $252.47, and was indorsed by him in a very “shaky” hand, and he took it with Mm. Later it was cashed by George D. Collins, Sr. His appearance and mumbling to himself on May 20th indicated that he was not his former self. On May 26th Mr. Barrett could understand but a few of Mr. Kelleher’s utterances. The “terrific chill,” as it was described, lasted spasmodically throughout the entire time that Kelleher was at the office, and when it was at its height, he was very weak. The severe shaking spoken of by the wit

Mr. Collins testified that the first trust instrument, exhibit “A,” was prepared May 25th, and that Kelleher was to call at his office to sign it, but failed to appear, and later telephoned to him to come to his room. He went to Kelleher’s room that night and procured Kelleher’s signature. No one but Collins was present to witness the signing. Its execution was afterward acknowledged by Collins as a subscribing witness. Instrument B, conveying the real property, was not signed on that night, as Kelleher, according to Collins, discovered an error in the description which he wished corrected and an appointment was made for Kelleher to be at Collins’ office to sign the instrument as corrected on the morning of May 26th. That was the morning that Kelleher appeared at the Pacific Gas and Electric Company’s office. His manner and appearance have already been described by Mr. Barrett. Collins heard of the collapse of Kelleher and hastened to the Emergency Hospital, taking with him the trust instrument covering the real property and had it signed by Kelleher. Collins testified that Kelleher’s mind was perfectly clear when he arrived at the hospital and at the time he executed said instrument, and purported to relate parts of conversations he claims to have carried on with him. He found Kelleher on a reclining chair.

John T. Kane, who was an applicant for letters of guardianship of the estate and person of Kelleher, a matter pending, upon being informed of Kelleher’s illness, procured an ambulance and went to the place "where Kelleher was stricken, to convey him to the Emergency Hospital. He found him in a helpless condition and unable to walk. He testified: “He acted kind of childish as if he didn’t have any sense. He seemed kind of stunned. I spoke to him and asked how he felt; he shook his head, ‘no.’ ” From the time Kane first saw him until the time that Collins arrived at the hos

Upon the death of Mr. Kelleher, Doctor G. T. Rusk, a pathologist of the University of California Hospital, and an assistant professor in the medical school, made an autopsical examination of the abdominal cavity and found the heart, kidneys, pancreas, and lungs in a very advanced stage of deterioration and disease. There was evidence of marked thickening and hardening of the arteries, fibrosis and sclerosis. The heart was generally enlarged and the surface in some instances had adhered to the sac in wMch it lies. Extensive fibrous myocarditis of the left ventricle was evident. The general condition of these organs was chronic and of long standing and affected in a very large degree the flow of the blood to the brain. The deceased suffered from a “heart block” which was a serious and chronic disturbance of the heart action in that it showed that the auricle and ventricle did not beat in normal rhythm. This was sufficient to cause loss of memory, forgetfulness, irritability, syncope, and a general mental disturbance. No autopsical examination was made of the brain. It was the

In addition to what has been above said, there is testimony in the record of marked general deterioration of mind and body in Kelleher beginning several years prior to his death. [1] We think.there is no doubt but that there is sufficient evidence in the record to fully sustain the findings of the court that he was of unsound mind at the time of and for some time prior to the executions of the instruments in question to the extent that he did not understand the nature, purpose, or extent of his acts. There is also testimony in the record coming from his most intimate friends that during the time covered by the Collins’ negotiations, he believed that he was engaged in making a will, and he remarked to one or two of his close friends that he had remembered them in his will. The finding of the court that he did not understand or appreciate the nature, quality, purpose, effect, and extent of his act in executing the papers in question -is amply supported by the evidence in the case. It is the contention of appellant that had decedent made a will the evidence as adduced in this action would be insufficient to overturn it under the many standard authorities of this state settling the rule as to the degree of mental incompeteney necessary to be adduced to justify a court or jury in holding a testator incompetent to make a will, and the same evidence if applied to such a case would compel us to hold it insufficient to establish mental incapacity. With this suggestion we must disagree. We feel satisfied that a finding of the court or a jury as to the incapacity of a testator upon evidence such as is presented to us in the instant case would compel an affirmance of the finding. [2] No hard- and-fast rule may be announced as to whether a different degree of capacity is required to make a deed or contract than is necessary to the execution of a valid will. A contract may be so complex and intricate as to require a keener discernment of intellect and understanding than would be required to execute an ordinary, simple will. And vice versa. As a general proposition of law it is impossible to say that either requires a greater degree of capacity than the other. Bach must be construed with reference to its own particular

Section 2224 of the Civil Code provides: “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” [5] Whether or not Collins intended and planned to gain an advantage over Kelleher was a question for the trial court. If he did, then the burden was upon him to show that the transaction was fair. [6] While the name of the appellant does not. appear upon the roll of attorneys of this state, this court will take

[7] Surely, a transaction such as has been outlined should command the close scrutiny of a chancellor. Whether the transactions contain within themselves the seeds of an iniquitous purpose is a question solely for his conscience, and his decree will not be disturbed if there be any substantial evidence to support his conclusion, even though an opposing conclusion may find some support in conflicting or contradictory evidence. We have examined the entire record and have given careful consideration to the arguments of counsel, and are convinced that the judgment is supported by the evidence.

[8] Appellant insists that the action is one primarily for the reconveyance of specific real and personal property in the possession of the appellant and that the action is, therefore, of a legal cognizance, and that the appellant was entitled to the intervention of a jury under the authority of section 592 of the Code of Civil Procedure. (Donahue v. Meister, 88 Cal. 121 [ 22 Am. St. Rep. 283 , 25 Pac. 1096 ]; Hughes v. Dunlap, 91 Cal. 385 [ 27 Pac. 642 ].) But where the issue joined by the pleadings is clearly of equitable jurisdiction, the right to a jury trial does not exist as a matter of right. In such cases it is not error to deny the application for a jury trial. [9] Under the common law the right to a trial by jury was not granted in actions for cancellations of instruments, and the rule is well established in this state that it is not error to deny a jury in any cases where such right was not granted at common law. (Holland v. Kelly, 177 Cal. 43 [ 169 Pac. 1000 ]; Cassidy v. Sullivan, 64 Cal. 266 [ 28 Pac. 234 ]; Woods v. Varnum, 85 Cal. 639 [ 24 Pac. 843 ]; Ballou v. Avery, 175 Cal. 641 [ 166 Pac. 1003 ]; 15 Cal. Jur. 331.) It has been held that in actions which are nominally instituted to quiet title under section 738 of the Code

The judgment appealed from is affirmed.

Richards, J., Shenk, J., Lawlor, J., and Waste, C. J., concurred.

Rehearing denied.