Moore v. Franklin

Action concerning an escrow agreement involving an interest in real estate and in the proceeds of sales under said agreement. The facts had better be stated chronologically.

In December, 1893, Agnes B. Oglesby died testate in the city of Santa Barbara. She left a large estate, a part of which was block 70% of land in the city of Santa Barbara.

Just before the mother’s death she called the two trustees, her daughters, to her and told them that she was going to dispose of her property by deeds instead of by will and that the trust features in the will regarding her two sons must be released. She instructed her attorney to draw up deeds to that effect. She died, however, before her purpose was consummated. A. A. Oglesby was then city attorney of Santa Barbara. This fact was stated by the mother as a reason for releasing the trust. Soon after the distribution of the mother’s estate, under the terms of the will, the trustees and beneficiaries agreed to deed back and forth like they had done in the matter of the estate of their father and thereby straighten out the title and do away with the trust.

On November 6, 1895, two months after the distribution of their mother’s estate, the trustee sisters and their brothers agreed orally to end the trust according to their mother’s wish. D. F. Oglesby, unskilled in conveyancing, drafted the two deeds with the aid of his brother, A. A. Oglesby. These two deeds are dated November 6, 1895. They are grant, bargain, and sale deeds and each recites a consideration of two thousand dollars. Both of these deeds are signed by the sisters. They contain no recital of the trust. One deed is to Gideon E. Franklin, Jr., and described some of the residue of the property distributed to the grantors to be held by them in trust for A. A. Oglesby under his mother’s will, but not all of it. Nor does the deed correctly describe the interest which he was to receive in some of the property. It did, however, describe an undivided one-fifth part in block 70% of the city of Santa Barbara. This deed was acknowledged November 9th and recorded at the request of A. A.

On December 3d, the day A. A. Oglesby recorded the deed above mentioned from the sisters to Gideon E. Franklin, Jr., he also recorded another deed from Gideon to himself of the same property. Again, on December 9th Gideon, by and in the name of Edwards Franklin, made another deed to A. A. Oglesby in which deed the same property which the trustees had conveyed to him and which he had deeded to A. A. Oglesby by deed dated six days before, was described, with one important change, of course, and some minor changes of the spelling of Spanish names of streets. This last-named deed was made to correct the grantor’s former deed of a few days before. This fact was established not only by the testimony of the surviving trustee, but by the internal evidence found in said deeds and decree of distribution. What became of D.

A. A. Oglesby died about two years after receiving and recording the three deeds above mentioned, one from his sisters to Gideon, one from Gideon to himself, and another from Edwards to himself, all describing the identical property with some differences in description and spelling above noted. A. A. Oglesby’s heirs were plaintiffs herein, Mildred, his wife, and Anna B. and Frances, his daughters. His estate was administered and his interest in said block 70% was inventoried and distributed as an undivided one-fifth interest therein. Before his death A. A. Oglesby dealt with his interest in said block as an undivided one-fifth interest only, as his heirs did from the time of his deqth down to the time of the commencement of this action.

After their father’s death, and long before the bringing of this suit, Frances W. Oglesby, who was one of the trustees above mentioned, died, and her estate was probated. The one-fifth interest which was inherited from her mother, Agnes B. Oglesby, and which interest was distributed to her under her mother’s will, was administered upon and oneffourth of this one-fifth interest was distributed to the two daughters of A. A. Oglesby, who are plaintiffs herein. If Frances W. Oglesby had parted with her individual interest in said block 70%, as claimed by appellants, by the deeds above mentioned, instead of the interest she held in trust for A. A. Oglesby, then she would not have had any interest in said block at the time of her death. This is conceded by counsel for appellants in their brief. Yet, these plaintiffs took by distribution from their aiint’s estate an undivided one-fourth interest in the estate’s one-fifth interest in said block, the very property which they now claim the aunt parted with to the father twenty-five years ago.

Believing that they owned the undivided one-fifth interest administered in their father’s estate and the one-twentieth interest received from their Aunt Frances’ estate, the two daughters of A. A. Oglesby, plaintiffs herein, in February, 1915, joined with their two living aunts in signing the escrow agreement to sell said block 70%. After this agreement had been placed in the Santa Barbara County Na

In their complaint • plaintiffs allege that they were the owners of an. undivided three-fifths interest in and to said block 70%. The court found that they were and are the owners of an undivided one-fourth interest only, the same being the proportional claim of the proceeds of the sale as set forth in the escrow agreement.

[1] Appellants chose to appeal on a hill of exceptions. In the bill they failed to specify wherein the findings are unsupported by the evidence. They also moved the court for a new trial and in their amended notice of motion they made certain specifications wherein they claim that by a preponderance of evidence they had established certain facts opposite to those found by the court. The bill of exceptions purports to set forth the evidence adduced at the trial, but contains no specifications whatever. This being the state of the record the point made by appellants that the evidence is insufficient to support the decision cannot be raised here. “No particular form of exception is required, hut when the

The bill of exceptions does not contain any particular specifications of errors. It does, however, contain exceptions to certain rulings of the trial court. These rulings more or less involved the question of the sufficiency of the evidence to support the findings. [3] We shall consider these rulings and in doing so have examined the record and have concluded the findings of the court are supported by the evidence.

The complaint alleged that soon after the death of the father of said plaintiffs the defendant, Belle 0. Franklin, falsely and fraudulently represented to these two plaintiffs that they each owned a one-eighth part or interest only in said block of land. The court found that said defendant made no false or fraudulent representations whatever to said plaintiffs or either or any of them.

Appellants point out in their opening brief no particular exception to any oral testimony introduced or adduced concerning the deeds upon which they rely to establish their claim of title. In their brief they state generally that the language in the deeds is clear, the intent of the parties is fully expressed, and that parol evidence upon the hearing was not admissible to prove that the parties intended something different from what the language of the deeds themselves expressed. Dealing with the objections in the same general way as presented in the opening brief of appellants, suffice it to state generally what occurred on the trial of

“Q. What one-fifth interest were you conveying to your brother, A. A. Oglesby ?

“A. An undivided one fifth in block 70y2.”

She further testified without objection that the conveyances were made to Franklin so that A. A. Oglesby, her brother, should have the property absolutely divested of the trust. What trust did she refer to, was asked her without objection.

“A. It was the trust clause in the will my mother made leaving brother Gus’ [A. A. Oglesby] property in trust to sister Fannie [Frances] and myself.

“Q. Now, is that the property you were conveying?

“A. That one-fifth interest undivided one-fifth.”

But if there was any doubt surrounding the transaction between the witness and her cotrustee and the father of said plaintiffs, it was cleared up on cross-examination of the witness. Under a wide range of examination she explained in detail the transaction, the intention of the parties, the object of the deeds and the interests and estates they conveyed. For example:

“Q. Have you ever signed any deeds as trustee to this property yourself?

“A. As trustee?

“Q. Yes.

“A. I made a deed to my brother to release his property from this trust. . . .

“Q. Now, when you deeded this one-fifth, Mrs. Franklin, did I understand you to say you were deeding the trust interest?

“A. Absolutely.

“Q. You were acting as trustee at the time ?

“A. No, I was releasing myself. My mother had asked me to do it. . . .

“Q. You were then attempting to destroy the trust?

“A. Of course I was, Mr. Balaam. I was trying to give .my brother his property. That was my only endeavor.

“Q. You were trying to give your brother his property by deeding that property to Gideon Franklin; was that the idea?

“A. It was only a vehicle. . . .

“Q. Then you had an understanding with Gideon Franklin that you were going to destroy the trust?

“A. I will tell'you, Mr. Balaam, I did not make these deeds. My brother D. F. Oglesby said, ‘Now I will make the deeds, and Gus will'help me in his office.’ Our friendship was perfect, our confidence was absolute in each other. They made these deeds and I signed them, and it was signed for that one purpose alone. Brother Gus never bought that property. He didn’t pay taxes on it, and the heirs didn’t pay. ...

“Q. When you made this deed to Gideon Franklin, you mean to say you and your sister made it as trustees under the will of your mother?

“A. We made it to release, so he would have it entirely and it could be at his absolute use and disposal. . . .

“Q. You gave it to him under this deed [deed to Gideon], you got no consideration for it?

“A. No, I did not; I did not.get a thing.”

And on direct examination, without objection, this question was asked and this answer given in regard to the other trustees receiving a consideration for the deed:

“Q. Did she receive any consideration?

“A. 'She did not.”

The foregoing excerpts from the testimony, taken in connection with the decrees of distribution and the deeds in evidence, clearly show, exclusive of the testimony received over the objections'of appellants, that A. A. Oglesby, at the time of his death, owned an undivided one-fifth part only of said block 70y2. Mrs. Franklin and her sister received, to hold in trust, two-fifths only of said block for their two brothers. The decree distributed this interest to them in their individual names. They parted with but two-fifths interest in

[4] Nor do we refrain from holding that under the circumstances of the case, parol testimony was admissible to explain the whole transaction as revealed by the decrees of distribution of the three estates and the four deeds introduced in evidence by plaintiffs. There existed a fiduciary relation between sisters and brothers, not only in blood, but in a business way. Besides the complaint charged that the defendant, Belle 0. Franklin, the surviving trustee, had been guilty of fraud in certain representations concerning this very one-fifth and alleged three-fifths interest in said block. Certainly it is not the law under such circumstances that she must sit silently by and not be allowed to orally explain a transaction which on the face of the written evidence of plaintiffs contains uncertainties and inconsistencies, just because, forsooth, she had made and signed a writing twenty-five years ago.

The trial court did not abuse its discretion in denying appellants a continuance during the trial of the cause. No sufficient diligence was shown. Besides plaintiffs’ title depended largely upon records and writings. Even if the testimony of the absent witnesses would have established that

The judgment is supported by the findings.

'Judgment affirmed.

Richards, J., and Waste, P. J., concurred.