Estate of Stephens

• Decision Date: 25 July 2002
• Docket Number: No. S095401.,S095401.
• Citation: 49 P.3d 1093,122 Cal.Rptr.2d 358,28 Cal.4th 665
• Court: California Supreme Court
• Parties: ESTATE OF Austin D. STEPHENS, Deceased. Katherine Stephens Vohs, Petitioner and Appellant, v. Scott Williams, as Cotrustee, etc., et al., Claimants and Respondents.

122 Cal.Rptr.2d 358

28 Cal.4th 665

49 P.3d 1093

ESTATE OF Austin D. STEPHENS, Deceased.

Katherine Stephens Vohs, Petitioner and Appellant, v. Scott Williams, as Cotrustee, etc., et al., Claimants and Respondents.

No. S095401.

Supreme Court of California.

July 25, 2002.

E. Michael Ambrosi for Petitioner and Appellant.

Law Offices of Roger P. Sprigg and Roger P. Sprigg, Tustin, for Claimants and Respondents.

MORENO, J.

This matter involves a petition under the Probate Code seeking the return of real property to the deceased's estate. Prior to his death, the deceased orally instructed his daughter to sign his name on a grant deed that vested title to his residence in himself and her as joint tenants; she did so outside of his presence and he later orally ratified the conveyance. We granted review to decide whether the transfer was valid. As discussed herein, we conclude the transfer was valid.

I.

In 1978, Austin David Stephens (Austin) and his wife, Thelma, executed crossover wills, which provided that when they passed away all their real and personal property would be equally divided between their children, Lawrence Stephens (Lawrence) and Shirley Williams (Shirley).

In 1983, Thelma became seriously ill with cancer. Shirley drove her mother to every chemotherapy treatment and gave her around-the-clock care for five years. Shirley, who lived just two houses from her parents, installed an intercom linking their bedrooms so her mother could reach her at any time. At the same time, Shirley held two jobs. She worked in the daytime as a switchboard operator and in the evening as a cocktail waitress.

Soon after Thelma died in 1988, Austin's health began to suffer. Over the next six years, he had over 170 doctor visits and was hospitalized several times as a result of diabetes, a heart attack, prostate cancer, lip cancer, high blood pressure, glaucoma, and ear and eye surgeries. Shirley, as she did with her mother, took care of her father. She fixed him three meals a day, cleaned his pool and house, washed his clothes, watered his plants, purchased his groceries, gave him daily insulin shots, arranged his medical appointments, purchased his prescriptions, completed his insurance paperwork, medical forms and tax returns, paid his bills and cared for his pets.

Unlike Shirley, Lawrence was not involved in the daily activity of caring for his father. In August of 1989, Lawrence moved from California to Colorado to retire. Thereafter, he visited his father once or twice a year.

Austin began to lose his eyesight from glaucoma. In 1989, he executed a durable power of attorney, naming Shirley his attorney-in-fact. The document specified that she had the power to sell, convey, and transfer his real property. By 1990, Austin was blind and relied on Shirley to read documents for him. In 1991, Austin decided to make a gift of his home to Shirley due in part to her caring for him as well as Lawrence's departure to Colorado at a time when Austin felt he needed help.

A grant deed was typed by Agnes Stephens, who was Lawrence's ex-wife and Shirley's coworker. The deed vested title in Austin and Shirley as joint tenants. Austin's name and address were typed on the deed for return by mailing after recording. Following preparation of the deed, Austin verbally instructed Shirley, in the presence of Austin's best friend and neighbor, Delbert Catron, to sign his name to the deed. Shirley followed her father's instructions. She executed the deed and had it notarized. Austin was not present at the time Shirley signed the deed.

The trial court determined that, after the deed was executed, Austin "orally and expressly" ratified Shirley's signing of his name to the deed. The trial court stated: "a. Shirley immediately told Austin of each step of the execution, notarization, forwarding of the deed to the County Recorder's office for recording, and return of the deed to him after recording. At each of these steps Austin verbally acknowledged to Shirley that that was what he wanted to happen and instructed her to proceed with the next step. [¶] b. While the deed was with the County Recorder's office for recording, Austin personally received a telephone call from a person from the County of Orange who inquired as to whether Austin intended the transfer of the real property to be a gift to Shirley. Austin told the caller that that was his intent. [¶] c. After the deed was recorded it was mailed to Austin's residence, at which time he verbally acknowledged receiving it and instructed Shirley to place it in safekeeping. [¶] d. Subsequent to the recording of the deed, Austin had several conversations with Mr. Catron in which he told Mr. Catron that Shirley had followed his instructions and executed the deed. [¶] e. Around Christmas 1991, subsequent to the recording of the deed, Austin traveled to Florida where he stayed for several weeks or months to visit his brother, James Franklin Stephens. During that visit he repeatedly told his brother that he was angry with Larry for leaving California, that he had nothing but praise for Shirley for taking care of him, and that he had `disinherited Larry.'"

The trial court also determined that Austin was at all times thereafter mentally competent and capable of taking action to disavow the validity of the deed if that was his desire, but that he did not do so despite his knowledge of the execution, notarization, and recording of the deed.

Within a few weeks of Austin's death in 1994, Lawrence filed a petition for probate of the will and a petition to determine title and require transfer of the property to the estate pursuant to Probate Code former section 9860, subdivision (a)(4). Lawrence died before trial, but his daughter, Katherine Stephens Vohs (Katherine), continued with the litigation as his successor in interest (Code Civ. Proc., §§ 377.31 & 377.32), and filed an amended petition.

After a court trial, the trial judge declared Shirley the sole owner of Austin's property under the "amanuensis" rule, which provides that where the signing of a grantor's name is done with the grantor's express authority, the person signing the grantor's name is not deemed an agent but is instead regarded as a mere instrument or amanuensis of the grantor, and that signature is deemed to be that of the grantor. (See generally Ledford v. Hubbard (1926) 219 Ky. 9, 15, 292 S.W. 345, 348, and cases cited therein; Lukey v. Smith (1961) 77 Nev. 402, 365 P.2d 487, 488-489].)¹

The trial court stated: "Shirley's signature of Austin's name was a purely ministerial, mechanical act and was not an exercise by Shirley of any authority under the power of attorney. The signature is therefore deemed to be that of Austin made by the hand of Shirley, and not the signature of Shirley as an authorized agent under the power of attorney or otherwise as a fiduciary. In so signing the deed, Shirley was not exercising any authority [under the power of attorney], and therefore did not exceed any authority. By virtue of Austin's antecedent instruction to Shirley and his subsequent ratification, the signature on the deed is deemed to be Austin's as a matter of law, meeting the requirement of [Civil Code section 1091] that a deed be executed by the grantor."

Katherine appealed. During the appeal's pendency, Shirley passed away. Her children continued to defend the lawsuit. (Code Civ. Proc., § 377.40; Prob. Code, § 58.) The Court of Appeal reversed. It held that under Civil Code section 2309, Shirley's authority to execute the deed as Austin's agent had to be in writing. As Shirley's written authority was derived from a durable power of attorney, Shirley could not convey the property to herself as a gift. Moreover, Austin's oral ratification of the deed was insufficient because Civil Code section 2310 requires that such ratification be in writing. Finally, the Court of Appeal rejected the amanuensis theory because the deed was admittedly not signed in Austin's presence.

The Court of Appeal reached its decision reluctantly: "The record is clear [that] Austin desired to give his home to Shirley to thank her for all her selfless giving, continuous help and love. Sadly, Austin and Shirley failed to comply with legal formalities necessary to carry out Austin's wishes."

We granted review; we now reverse.

II.

The Court of Appeal correctly determined that Shirley was not authorized to sign the deed as Austin's agent. A deed is a written instrument conveying or transferring the title to real property; it is an executed conveyance and operates as a present transfer of the real property. (3 Miller & Starr, Cal. Real Estate (3d ed. 2000) Deeds, § 8.1, p. 5 (Miller & Starr).) As a deed is "an executed contract, it is subject to the rules applicable to contracts." (Ibid.; see also Civ.Code, § 1040; Johnston v. City of Los Angeles (1917) 176 Cal. 479, 485-86, 168 P. 1047 [deeds must be read like any other contracts].)

An agent's authority to execute a deed on behalf of a principal must be conferred in writing. Civil Code section 1091 provides, in pertinent part: "An estate in real property ... can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing."

Moreover, the "equal dignities" rule of Civil Code section 2309 (section 2309) provides that a principal's oral authorization to an agent "is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing." The deed in this matter, as a present transfer of property, fell squarely within this rule. (See 3 Miller & Starr, supra, Deeds, § 8.27, p. 52 ["In general, if some other person executes a deed on behalf of the grantor, the grantor's authorization must be in writing."].) Shirley did not have written authority to execute the deed as Austin's agent. The transfer was thus not authorized by ...