McDonald v. Hewlett

• Decision Date: 07 March 1951
• Citation: 228 P.2d 83,102 Cal.App.2d 680
• Parties: , 24 A.L.R.2d 1281 McDONALD et al. v. HEWLETT. Civ. 14713.
• Court: California Court of Appeals

Page 83

228 P.2d 83

102 Cal.App.2d 680, 24 A.L.R.2d 1281

McDONALD et al. v. HEWLETT.

Civ. 14713.

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

March 7, 1951.

Rehearing Denied April 6, 1951.

Hearing Denied May 3, 1951.

George K. Ford, San Francisco, for appellant.

Louis Ferrari, James F. Brennan, San Francisco, for respondents.

PETERS, Presiding Justice.

Amanda McDonald, as the administratrix of the estates of Angnes, August, Fred and George Kromrey, brought this action against George Hewlett, an attorney at law, to recover some $50,000 of money and personal property alleged to belong to the Kromrey estates, possession of which, it is alleged, was secured by Hewlett from George Kromrey by fraud and deceit and in violation of the confidential relationship existing between the two. Hewlett's basic defense to the action was that the money and property had been received from George Kromrey as a gift. He also cross-complained and counterclaimed, but offered no evidence to support these pleadings and makes no argument in his briefs on the issues thus created.

The trial court found that the relationship of attorney and client existed between Hewlett and George Kromrey when the alleged gift was made; that Hewlett secured possession of some $40,060 belonging to Kromrey fraudulently, unlawfully and in violation of the confindential relationship. The court concluded that there was no valid gift, and entered its judgment accordingly. Hewlett appeals.

The evidence unoubtedly supports the findings. This is the second appeal to reach this court in which the transactions here involved have come under court scrutiny. In addition to the alleged gifts here involved, Hewlett succeeded in getting himself appointed co-administrator of the estate of Fred Kromrey, and administrator of the estates of August and Agnes Kromrey. Because of the more than questionable manner in which these documents were secured, and because of the actions of Hewlett in connection with the very transactions here involved, Hewlett was removed as administrator of these estates. This court affirmed the orders of removal. In re Estate of Kromrey, 98 Cal.App.2d 639, 220 P.2d 805. Reference is made to that case for a statement of facts supplementary to those here set forth.

Hewlett is an attorney, having practiced since 1904. Since 1944 he has been attorney for George Kromrey, and handled several matters for him. In 1948 Kromrey was a man of about 54 years of age who had not worked for about five years, having been ill for about that time. After his death, which occurred on February 14, 1949, it was discovered that he had been suffering for over five years from a large tumor of the pituitary gland which extended up into his brain, and which the medical evidence shows could have affected his vision and his brain. George Kromrey was the administrator of the estates of August and Agnes Kromrey, his mother and father, and of Fred Kromrey, his brother. Fred died in 1943, and August and Agnes died in 1947.

Amanda McDonald has lived in the lower flat of the Kromrey house since 1940, the Kromreys occupying the upper flat. After the death of August and Agnes, George continued to live in the upper flat, but took all of his meals with Mrs. McDonald. She generally looked out for George and nursed him through his frequent sick spells.

On October 28, 1948, George had a bad sick spell and his doctor, after finding that George was very sluggish and unable to answer questions, sent him to the psychiatric department of the San Francisco Hospital. Mrs. McDonald had accompanied Kromrey to the hospital and testified that he was then in a dazed stupor. She discovered that Hewlett was Kromrey's attorney, and telephoned to him and told him of his client's condition. Hewlett requested Mrs. McDonald to come to his office the next morning. This she did. When she informed Hewlett that Kromrey's father, mother and brother were dead, Hewlett dictated, in the presence of Mrs. McDonald, four documents, one of which nominated Hewlett as co-administrator of the estate of Fred, two nominated Hewlett as administrator of the estates of August and Agnes, and the fourth appointed Hewlett general agent for George Kromrey, with control over his property. After the four documents were transcribed, Hewlett, his son Palmer, and Mrs. McDonald proceeded to the hospital. Mrs. McDonald testified that Kromrey was 'laying there in a very dull stupor * * *. You wouldn't say unconscious, but just a stupor * * *. He never spoke.' Hewlett testified that Kromrey requested that Hewlett take care of his business affairs, but Mrs. McDonald testified that Kromrey never spoke a word; that 'Mr. Kromrey could not talk'; that she tried to hold Kromrey up to sign the documents, but he was just a dead weight and she could not manage it, so Palmer Hewlett held Kromrey up; George Hewlett then put a pen in Kromrey's hand and guided the hand and spelled out the names while Kromrey signed the four documents. Palmer notarized them. Admittedly, no explanation of the nature of these documents was given by Hewlett to Kromrey. Mrs. McDonald testified that as they were leaving the hospital Hewlett tried to make a 'deal' with her, by suggesting that when Kromrey died she put in a claim for $3,000 in the estate for services rendered. Mrs. McDonald replied that she was not interested in any 'deal,' that 'All I care about is Mr. Kromrey's well-being.'

Hewlett came into possession of the $40,060 here involved under the following circumstances: The four documents were signed on October 29, 1948. The next day Palmer Hewlett and Hewlett's secretary called at the Kromrey house and demanded that Mrs. McDonald deliver to them Kromrey's property. They visited Kromrey's flat and Palmer and the secretary removed a drawer full of miscellaneous personal property and documents, including an envelope containing currency which the trial court found, and Hewlett admitted, contained $8,600. Palmer refused to count the money in the presence of Mrs. McDonald and refused to give her a receipt, stating that it was not necessary. Defendant Hewlett, while his son and secretary were in the house, was waiting across the street. Hewlett was somewhat evasive as to what had happened to this money, but he finally admitted that on November 1, 1948, he put in a safe deposit box at the Haight-Asbury branch of the American Trust Co., the box being taken in the name of Hewlett and his son Palmer.

The second sum of $31,460 was received by Hewlett from Mrs. McDonald on the night of November 2, 1948. This money had been given to Mrs. McDonald by Kromrey to keep for him. Mrs. McDonald, while Kromrey was in the hospital, asked him what he wanted done with the money, and he gave her written instructions that the money should be deposited in the bank. Hewlett discovered that she had the money and demanded possession of its, saving that it belonged to the three estates, and threatening that unless it was paid over to him the government would assess penalties and throw Kromrey into jail. Mrs. McDonald showed Hewlett Kromrey's instructions, but Hewlett replied that he was administrator of the estates and agent for Kromrey, and was not interested in Kromrey's wishes. Mrs. McDonald insisted that the money be counted and a receipt given to her. When this was done she turned the $31,460 over to Hewlett. Hewlett, after some evasion, admitted that that night he tried to put this money in a safe deposit box at a day and night bank, but that department of the bank was not open. The next day Palmer and Hewlett rented a new safe deposit box at the same bank in which the $8,600 had been placed. Only Hewlett and Palmer had access to this box. Hewlett testified that he told the bank manager that the money belonged to Kromrey, and this was corroborated by the bank official, but that official also testified that he suggested that the money be put into a trustee account. This, Hewlett refused to do.

Hewlett claims that both of these deposits were given to him as a gift by Kromrey on November 7th and 8th, 1948. Another son of Hewlett's--George, Jr. by name--had visited Kromrey on November 6, 1948. He testified that at that time Kromrey praised Hewlett and told George, Jr. that he wanted to make a gift of all the money to Hewlett. George, Jr. conveyed this message to his father, and on November 7, 1948, George, Jr. and Hewlett visited Kromrey at the hospital. No one else was present. Hewlett testified that he asked Kromrey if he wanted to make a gift of the money to him; that Kromrey stated that he did; that he fortuitously had the $8,600 with him, and had a receipt for the $31,460; that he handed the envelope and the receipt to Kromrey who handed them back to him; that he thanked Kromrey and suggested that a paper should be drawn up recognizing the gift. No doctor, nurse or other disinterested person was called in to witness the alleged gift. On November 8, 1948, Hewlett, this time accompanied by Palmer and his secretary, again visited Kromrey. Hewlett presented to Kromrey, and Kromrey signed, the alleged gift document. Palmer and the secretary signed as witnesses. The affidavits of the witnesses were later notarized by a notary not then present. The document reads as follows:

'San Francisco, California

'November 8, 1948

'I have delivered, and now confirm delivery, to George Hewlett, my good friend, all of my money and personal property or all to which I am entitled as heir, and I give him the same absolutely, and he has accepted the same.

'George A. Kromrey----

'Witnesses: Mae Montgomery

'Palmer B. Hewlett'

On December 2, 1948, Hewlett received...