Cuenin v. Lakin

• Decision Date: 17 December 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Constant E. CUENIN and Frances C. Sides, Plaintiffs and Appellants, v. E. D. LAKIN, as the Executor of the Estate of William Henry Barnett, Bert S. Harper, Lorraine Harper, May Ann Pringle, East Palo Alto Community Church, Defendants and Respondents. Civ. 16936.

Page 157

304 P.2d 157

146 Cal.App.2d 855

Constant E. CUENIN and Frances C. Sides, Plaintiffs and Appellants, v. E. D. LAKIN, as the Executor of the Estate of William Henry Barnett, Bert S. Harper, Lorraine Harper, May Ann Pringle, East Palo Alto Community Church, Defendants and Respondents.

Civ. 16936.

District Court of Appeal, First District, Division 1, California.

Dec. 17, 1956.

Rehearing Denied Jan. 16, 1957.

Hearing Denied Feb. 14, 1957.

Joseph A. Bonacina, San Jose, for appellants.

Lakin, Spears & Gullixson, Palo Alto, for respondents.

AGEE, Justice pro tem.

William Henry Barnett and Mary A. Barnett were husband and wife. In June, 1929, they executed deeds of gift, each to the other, of certain real property owned by them. Mary died on May 7, 1935. Her daughter by a former marriage, Helene Cuenin, found the deed from William to Mary among her mother's effects and caused it to be recorded. William later discovered this when making a loan application on the property. He went to an attorney, who advised a quiet title action. Helene was contacted and she agreed to act and appear as administratrix of her mother's estate. The action was uncontested, Helence having filed a disclaimer. A decree quieting title in William was rendered April 20, 1936. On the same day William executed a deed of gift of two lots, described as 34 and 35, to Helene. He delivered this deed to Egerton D. Lakin, an attorney, with the following written instruction: 'Said deed is to take effect only in the event of my death; therefore it is handed to you with instructions that it is to be delivered to Mrs. Cuenin upon my death, and not before.' Five years later William requested the return of the deed. Lakin was of the opinion that he was entitled to it but, as a matter of caution, wrote to Helene on June 24, 1941, enclosing a request that she sign the following consent: 'Referring to the escrow whereby you are holding a certain deed of gift in my favor from W. H. Barnett, covering lots 34 and 35 in Block 16, Woodland Place, San Mateo County, California, I have no objection to the termination of said escrow, and the return of said deed to Mr. Barnett.' Helene, under date of July 23, 1941, replied with the following signed statement: 'Referring to the escrow whereby you are holding a certain deed of gift in my favor from W. H. Barnett, covering Lots 34 and 35, Block 16, Woodland Place, San Meteo County, California, I have no objection to the termination of said instrument and the return of the said deed to Mr. Barnett in consideration of his agreement to make his will and include a clause therein whereby Lot 33, being an adjoining lot to the above described property, is devised to me.' (Emphasis added.) At the bottom of the same page upon which the foregoing was written appears the following statement, signed by William: 'I agree to the above provision regarding my will, and will not change the same without the consent of Helene Cuenin, so far as the same concerns said lot 33, in block 16, Woodland Place.' On the same day, July 23, 1941, William executed a formal witnessed will in which he devised Lot 33 to Helene. It is implicit in her signed statement of July 23, 1941, that Helene was giving up any claim as to Lots 34 and 35.

Helene died on November 17, 1949, leaving surviving as her heirs the plaintiffs herein, Constant E. Cuenin, her husband, and Frances C. Sides, her daughter.

Thereafter, william executed two holographic wills, dated July 23, 1950, and August 2, 1950, respectively. Neither will contained a devise of Lot 33 to Helene or her heirs. On March 24, 1953, William sold all of the property herein mentioned, i.e., lots 33, 34 and 35. William died on May 22, 1953. The will of August 2, 1950, was admitted to probate on June 10, 1953.

On December 9, 1953, this action was filed by Helene's husband and daughter to enforce the agreement of July 23, 1941, and impress a trust in their favor for the reasonable value of lot 33.

The position of respondents is that (1) there was no consideration for the agreement of July 23, 1941, and (2), if it was a valid agreement, that agreement was lived up to by the execution of the will of July 23, 1941, and that, upon Helene predeceasing William, the devise lapsed under the provisions of section 92 of the Probate Code.

The trial court concluded that there was no consideration for the agreement of July 23, 1941, because William did not intend to pass immediate title by the deed of April 20, 1936, and the delivery thereof to Lakin in escrow constituted an attempt to make a testamentary disposition without complying with the requirements of a valid will. The trial court also held that the devise lapsed by reason of Helene's death before that of William. Prob.Code, § 92. Judgment was thereupon rendered in favor of defendants and plaintiffs appeal therefrom.

There is no conflicting extrinsic evidence and the interpretation placed upon the agreement by the trial court is not binding on an appellate court. Fox v. Fox, 42 Cal.2d 49, 52, 265 P.2d 881; In re Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825. The deeds of 1929 were probably but not necessarily ineffective attempts of a husband and wife to make a testamentary disposition of the property in the event of the death of either. However, the deed which ran from William to May was recorded and constituted a cloud upon William's title. Helene helped to clear it. On the same day that he obtained a quiet title...