Sweitzer v. Bank of America

This is an appeal from an order of the superior court denying appellant’s petition and granting that of respondent for appointment as administrator of the estate of Emma Sweitzer, deceased. Which one of these parties is entitled to the appointment is to be here determined. Emma Sweitzer was the widow of Sam Sweitzer, who died intestate in 1916, leaving four sons by a former marriage, one of whom is appellant. In 1930 Emma Sweitzer also died intestate, but left no issue. Respondent is the nominee of two of her heirs, a brother and a sister.

Appellant relies upon the provisions of subdivision 8 of section 1386 of the Civil Code and section 1365 of the Code of Civil Procedure, which at the time read in part as follows: “If the deceased is a widow . . . and leaves no issue, and the estate . . . was common property of such decedent and . . . her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such de

This estate consists of real and personal property, with the fruits thereof, which was in 1916, when Sam Sweitzer was living, the community property of himself and his wife, this decedent. During his last illness he executed two deeds and a bill of sale covering the property wherein he named his wife as grantee and vendee, respectively. These documents he handed to a friend with instructions that in the event of his death they were to be given to his wife, but, if he recovered, they were to be returned to him, because, he stated, if his wife obtained possession of the property during his lifetime she would “throw him out”. He also expressed the opinion that as the property was heavily encumbered, his wife would not get much but debts. Some seventeen days later he passed away. The said friend immediately delivered the documents to Emma Sweitzer, who had them recorded on the day of her husband’s death. No steps were taken by her or by his children to administer his estate. The relations between these parties were not hostile and, without interference of any kind, the widow enjoyed possession of all said properties during the remainder of her own life, netting a considerable profit through operation and development thereof and through the discovery and production of oil thereon. She was able to pay the debts and encumbrances and leave an estate valued at approximately $100,000.

The evidence is almost without conflict and shows the facts to be substantially as above set forth. The trial court made no findings, but, evidently acting upon the theory that there was a valid and complete delivery of the above documents to the wife, transferring title to said properties to her, it made a full and complete order granting to respondent the right to administer this estate, of which order the following

This order of the court below may be sustained only if, under the undisputed evidence, there was in fact a valid delivery of the said instruments to decedent or, conceding that there was no valid delivery thereof, if. the right of appellant and his brothers to succeed to part or all of their father’s estate was divested by the adverse possession of decedent. These points will be discussed in the order stated.

With reference to delivery of the deeds and bill of sale, the case of Williams v. Kidd, 170 Cal. 631 [13 Ann. Cas. 1916E, 703, 151 Pac. 1 ], from which the following quotation is taken, is directly in point: “It is well settled that where a deed is deposited with a third party to be handed to the grantee on the death of the grantor, unless this is accompanied by an intention on the part of the grantor that title to the property shall thereby immediately pass to the grantee there is no delivery of the deed, and consequently no title is transferred. . . . If it be the intention of the grantor when he deposits a deed that it shall only be delivered to the grantee by the depositary after the death of the grantor, and that the title is to vest only upon such delivery after his death, then the deed is entirely inoperative as constituting an attempt by the grantor to make testamentary disposition of his property. ...” (See, also, McCully v. McArthur, 187 Cal. 194 [ 201 Pac. 323 ], Hotaling v. Hotaling, 193 Cal. 368 [ 56 A. L. R. 734 , 224 Pac. 455 ], Stone v. Daily, 181 Cal. 571 [ 185 Pac. 665 ], and many other cases therein cited.)

The evidence in this case shows beyond doubt that the firm and expressed intention of the grantor was to retain the title to and possession of his property until after his death because of his fear that his wife would “put him

The next question is: Have the rights of said children to inherit any or all of this estate been divested by reason of the alleged adverse possession and occupation, subsequent to the death of Sam Sweitzer, of all these properties by his said wife ?

Upon the death of Sam Sweitzer, intestate, in 1916, his wife was entitled to succeed to one-half and his children to the other half of the community property (sec. 1402, Civ. Code, prior to later amendments); the children then acquired a present vested interest in and title to an undivided one-half of said property; the widow acquired a like interest as to the other undivided one-half thereof. (Phelps v. Grady, 168 Cal. 73 [ 141 Pac. 926 ]; Smith v. Barrick, 41 Cal. App. 28 [ 182 Pac. 56 ].) She could not immediately afterward, by recordation of the above-mentioned documents, divest herself of this interest so as to in effect re-enter the property under- color of title and hold possession thereof adversely to her own vested right and the expectancy of the said children who would, if she died intestate, take the property upon

The above conclusion makes unnecessary any discussion pertaining to the other undivided one-half interest in the estate of said Sam Sweitzer, deceased, which his children acquired upon his death. In other words, we are not here determining whether their right to inherit this undivided one-half of the estate was divested by reason of the alleged exclusive possession and occupation of the property by Emma Sweitzer, under color of title, up to the time of her death. The sole purpose of this action is to determine to whom the appointment as administrator shall be given. We have concluded that appellant is entitled to the appointment.

The order appealed from is therefore reversed.

Curtis, J., Shenk, J., Waste, C. J., Tyler, J., pro tem., and Seawell, J., concurred.