Odone v. Marzocchi

• Decision Date: 15 November 1949
• Court: California Supreme Court
• Parties: , 17 A.L.R.2d 1109 ODONE v. MARZOCCHI. S. F. 17674.

Page 297

211 P.2d 297

34 Cal.2d 431, 17 A.L.R.2d 1109

ODONE v. MARZOCCHI.

S. F. 17674.

Supreme Court of California, in Bank.

Nov. 15, 1949.

Rehearing Denied Dec. 15, 1949.

See 212 P.2d 233.

McCarthy & Rowell, Redwood City, for appellant.

Albert Picard, Alfred E. Graziani, San Francisco, for respondent.

CARTER, Justice.

Respondent husband brought this action to recover certain real and personal property transferred by his wife shortly before her death to appellant.

Respondent, Giacomo Odone, and the decedent, Maria Odone, were married in France in 1928, and came to San Francisco where they lived until Maria's death in January, 1946. The record does not show that either of the parties had any separate property at the time of the marriage or that either of them acquired any during the marriage except as hereinafter set forth.

In July, 1944, Maria purchased for $1,300 a piece of improved real estate in San Francisco, taking title, as recited in the deed, as her separate property. Eleven days thereafter, her husband, the respondent, executed a quitclaim deed of this property to her. Both deeds were recorded on August 2, 1944. It appears that this property was purchased with the combined earnings of Maria and Giacomo Odone.

Appellant, Peter Marzocchi, had known Odone before his marriage to Maria, and after the marriage was a friend to both husband and wife, and was, at times, the employer of Odone. Maria, who had evidently come to dislike and distrust her husband, placed more and more confidence in Marzocchi and consulted with him about buying the property in question. It seems that Marzocchi assisted the couple in various matters since both Maria and her husband spoke Italian and had difficulty with the English language. Marzocchi testified that he went with Maria to the title company to help her complete her plans to purchase the real property. After her purchase of the house and lot, Marzocchi did a great deal of work in repairing it and in building an additional room thereon. He testified that he had expended $1,500 of his own funds on the house, and that his labor was worth $500.

In November of 1945, Maria became seriously ill and it was necessary for her to be hospitalized, and Marzocchi made all the necessary arrangements for her care. Several times before she became ill, Maria and Marzocchi had discussed different ways in which she could repay him for his labor and the money he had expended. (There is a deed in evidence, dated August 6, 1945, signed by Maria, granting to Marzocchi an undivided one-half interest in the property, but the evidence does not show that this deed was ever delivered to him.) On November 26, 1945, before she became hospitalized, but after the onset of her illness, Maria executed a deed to Marzocchi granting him the property in question for a recited consideration of $1,800. This deed was recorded December 15, 1945. On the same day, appellant signed and acknowledged a deed reconveying the property to her with the understanding that the deed would be delivered to their attorney and delivered by him to Maria if appellant should predecease her. This deed was never delivered to either the attorney or Maria, nor was it recorded.

With respect to the real property, the trial court found that respondent was the owner and entitled to possession; that Maria had no title or interest and no power to convey any interest therein; that the property was owned by respondent and Maria Odone; that the deed from Maria to appellant was void and must be canceled and appellant required to execute, acknowledge and deliver to respondent a deed conveying all right, title and interest in the property. These findings are inconsistent in themselves in that the court finds the property to be owned by respondent and Maria, and yet finds that Maria had no title or interest or power to execute any conveyance. The finding that respondent was the owner, or that he owned the property with Maria, his deceased wife, is not supported by the record.

The deed to Maria recites that the property is conveyed to her as her separate estate. Section 164 of the Civil Code provides that whenever any property is acquired by a married woman by an instrument in writing, it is presumed to be her separate property. Although this is a rebuttable presumption, respondent made no effort to explain his quitclaim deed of July 14, 1944. All presumptions being in favor of conveyances to the wife, therefore, in the absence of any evidence to the contrary, the quitclaim deed to decedent must be taken as evidencing the intention which it imports a conveyance of any interest which respondent had in the property to her as her separate estate, and the court is bound to find in accordance with the presumption. Freer v. Wells Fargo Bank & Union Trust Co., 75 Cal.App.2d 150, 170 P.2d 491; Rhea v. Thompson, 115 Cal.App. 466, 1 P.2d 1091; Dale v. Dale, 87 Cal.App. 359, 262 P. 339.

Although the property was undoubtedly purchased with the community funds of the parties, a husband and wife may agree between themselves that the status of such property may be changed so as to become the separate property of either of them, or the husband may make a gift of his share of the community to his wife. It would appear that the quitclaim deed, executed by respondent and otherwise unexplained by him, would show a sufficient intent on his part that the property was to be the separate estate of his wife. There is no other evidence bearing on the question, and under these circumstances, it would seem conclusively established that decedent owned the real property as her separate estate which she could, of course, convey to a third person without the consent of her husband, the respondent. Civil Code, sec. 162.

Respondent contends that it is immaterial whether the character of the property is considered to be community or the separate estate of the deceased wife inasmuch as it was conveyed by decedent to appellant merely for security purposes to insure the payment of appellant's services in repairing the house, and the repayment of the money expended by him. Appellant testified that his labor, and the money expended by him, amounted to about $2,000. He testified that Mrs. Odone asked him to have the deed prepared and insisted upon the insertion therein of the statement as to the consideration of $1,800. His testimony as to the reasons for her insistence is confusing. He said that she wanted to 'give' him the property because he had put a great deal of time and money into it; that she wanted him to be protected in the event that she died; that she 'just wanted to do it that way'. He also testified that in November, 1945, when Mrs. Odone became ill, she wanted to sell him the property and that 'the last understanding was that she decided to sell me the house because she found out I had done so much work in the house that it was worth it; she sold me the house for all what I done'. It would seem reasonable to conclude from this that Mrs. Odone either intended to give him the property because he had expended so much in repairing it, or that she intended to sell it to him for his past services which she valued at $1,800. Either conclusion is consistent with her intent, as evidenced by her deed, to pass title to appellant. Neither consideration, nor adequacy of consideration, is essential to the validity of a deed. Civ.Code, sec. 1040; Abelein v. Pepper, 8 Cal.2d 25, 63 P.2d 817; Graner v. Hogsett, 84 Cal.App.2d 657, 191 P.2d 497; Cambridge Co. v. Moore, 62 Cal.App.2d 134, 144 P.2d 57. The deed was delivered to and accepted by appellant, and it follows that if she intended to give him the property, her deed would pass title; or, if she intended to sell it to him for his past services, this also would be a sufficient consideration (if any were needed) to pass title to appellant. Bradley v. Butchart, 217 Cal. 731, 741, 20 P.2d 693; Davies v. Symmes, 49 Cal.App.2d 433, 122 P.2d 102; Chichester v. Mason, 43 Cal.App.2d 577, 111 P.2d 362.

The facts with respect to the personal property are as follows: Just before going to the hospital on December 16, 1945, Maria handed appellant a package of currency which she told him amounted to $5,400. He testified that she told him that she wanted him to use it to pay her bills and to do all that he would for her, and if she did not die, he was to return the balance to her, but if she should die, he was to keep it for himself. Twelve days later, while in the hospital, Maria signed an instrument, written both in English and Italian, which reads as follows: 'December, 28, 1945, I, Mary Odone, declare that I have made a gift, in case of my death, to my friend, Peter Marzocchi, of Fifty Four Hundred Dollars ($5400.00) in cash which I want him to have for his own in case I should die. If I recover my health, he will return it to me. Maria Odone'. Maria died eight days after signing this instrument.

The Civil Code, section 1149, provides that a gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver. Section 1150, Civil Code, provides that 'a gift made during the last illness of the giver, or under circumstances which would naturally impress him with an expectation of speedy death, is presumed to be a gift in view of death.' The essential elements of such a gift are present here. The gift was made with a view to the donor's death; the donor died of the illness which she feared; there was an actual delivery to the donee, and acceptance by him, all of which transpired within the life of the donor. Braun v. Brown, 14 Cal.2d 346, 94 P.2d 348, 127 A.L.R. 773; Yates v. Dundas, 80 Cal.App.2d 468, 182 P.2d 305; Barham v. Khoury, 78 Cal.App.2d 204, 177 P.2d 579. In the last cited case, the Court said that the execution of a writing does not enhance the validity of a gift causa mortis. Its only advantage is to contribute to...