ABSTRACT AND TITLE GUARANTY COMPANY, Appellant, v. STATE OF CALIFORNIA, Respondent, 173 Cal. 691

MELVIN, J. Plaintiff sued under the provisions of subdivision “A” et seq. of

section 29 of the inheritance tax law of 1905 (Stats. 1905, pp. 341, 351) to quiet its title to the real property described in the complaint, against the state’s claim of lien of an inheritance tax. Defendant by its answer averred that the deed upon which plaintiff’s claim of title was founded had been made by the grantor in contemplation of death, and to take the place of a testamentary disposition of the realty. After trial upon the issues joined judgment was given in favor of the state. Plaintiff appeals from the judgment and from an order denying its motion for a new trial.

Plaintiff’s asserted title is derived through mesne conveyances from the Hely Estate Company, a corporation of which Gorges Hely’s three sons and only heirs are the sole stockholders, each holding an equal proportion of the stock. The important document upon which plaintiff’s alleged title depends is a deed from Gorges Hely to the Hely Estate Company dated July 10, 1908, and recorded soon thereafter. Plaintiff offered this deed in evidence.

In it the grantor Gorges Hely was described as “the'party of the first part,” and the corporation as “the party of the second part.” It provided that “for and in consideration of the sum of ten dollars gold coin, to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, as a further and additional consideration the agreement on the part of the party of the second part to and with the first party that the second party will care for, maintain and support in a proper and suitable manner during the balance of his life the first party, said first party does by these presents, grant, bargain, sell, convey and confirm unto said party of the second part.” After introducing at the trial the other record evidence of its title, plaintiff placed J.

H. Hely on the witness-stand, and he testified that following the 10th of June, 1908, the Hely Estate Company commenced to pay off the indebtedness on the land described in the deed. He enumerated payments amounting to more than seventeen thousand dollars, some of them made before but more of them after the grant to the corporation by Gorges Hely.

He testified: “The amount of the indebtedness of my father, Gorges Hely, at the time this deed was made to the Hely Estate Company was, I think, about $23,000. ’ ’ He did not state, however, that the assumption of the debts of Gorges Hely was a part of the consideration for the conveyance of the land to his corporation. Plaintiff then rested.

Thereafter the defendant introduced its evidence, and the court gave judgment in its favor based upon findings that at the time of the conveyance to the family corporation Gorges Hely was eighty years old; that his physical condition was such that, if a reasonable man, he must have apprehended that death was likely to occur at any time; that without any material change or improvement in his physical condition death did occur a little more than six months after the execution of the deed; that the deed operated as a transfer of all property owned by Gorges Hely at the time; that the transaction was not a sale; that the transfer was not made for a valuable consideration; that the agreement made by the corporation to care for the old man for the remainder of his life was ultra vires and void; that the conveyance was made in contemplation of death; and that it was made in lieu of a testamentary disposition of the property.

As a conclusion of law the court determined that the state of California had a lien on the land for an inheritance tax and it was so adjudged. Appellant calls attention to the difference between the phraseology of the inheritance tax law of 1905 and that of 1911 [Stats. 1911, p. 713], and insists that since the former act is applicable to this ease, we may interpret the words “contemplation of death” in the limited sense of that expectancy which actuates a person in making a gift causa mortis.

We are also reminded that the words “made without valuable and adequate consideration” which are applied to gifts specified in the later act do not occur in the earlier statute, and appellant suggests that adequacy of consideration is not an essential element to be dealt with in this action under the law of 1905. Both of these contentions have been considered By this department in Estate of Reynolds, 169 Cal. 600, [147 Pac. 268], and there rejected. In the opinion in that ease Mr.

Justice Henshaw said of the amendment of 1911 regarding want of valuable and adequate consideration: “the amendment served but to clarify and not to change the preexisting law.” Of the amendment adding to the law an express definition of the words “contemplation of death” he said: “This amendment also served the purpose of elucidating without changing the law, by giving fuller expression to the legislative intent and meaning.” Another and more serious attack upon the court’s findings made by appellant is that the value of the property was not shown, and that therefore the finding of inadequacy of consideration is not supported.

The record reveals the fact that the defendant sought to prove the value of the land involved in this controversy by Mr. Bordon, county treasurer of Madera County, and a person familiar with land values in that county. The court sustained an objection to the question upon the ground that no definite and specific sum had been proven as a consideration for the transfer of the property, but only the nominal monetary payment of ten dollars and the agreement bn the part of the grantee to care for the octogenarian invalid, and that therefore the value of the land in money was not involved. This was error.

The evidence was material. It is true, as the court ruled, that if an inheritance tax was due, an appraisement would be necessary; but it was proper for the defendant to show, in a case of this sort, the amount and value of property deeded by the old man to his sons in return for their promise to support him. But the error did not injure the appellant, because it had shown by its own witnesses that the land was of a greater value than five hundred dollars and therefore not exempt, under proper conditions, from an inheritance tax.

In the first place the situation was such and the acreage was so great as to amount to some proof of substantial value. It would be very difficult, if not impossible, to find two thousand acres of ranch land in Madera County which was of a value less than five hundred dollars at the time when this tract of that extent was transferred. Plaintiff’s own witness, J. H. Hely, testified that the grantee paid a mortgage indebtedness the principal amount of which was $3,160. That mortgage was upon a portion only of the land described in the complaint, that is “on the west half of

section 16 in township 12 south of range 18 east, ’ ’ as Mr. Hely said while a witness for the Abstract and Title Guaranty Company. If 320 acres of the land would support such a mortgage, surely there was some evidence that the tract was of much greater value. But it is contended that the state should prove a value of more than five hundred dollars beyond the twenty-three thousand dollars which the grantor owed when he made the transfer of the land.

Plaintiff neither alleged nor proved that the assumption of the debts of Gorges Hely was a part of the consideration for the conveyance of the land to the Hely Estate Company. It proved by J. H. Hely the amount of those debts, and that some of them had been paid by the corporation, but the only proof of consideration was that involved in the introduction of the deed itself. Upon this prima facie showing the defendant was entitled to attack the expressed consideration as the true one. The attack was successful, and the court’s finding in this regard was supported by abundant testimony.

It was shown by the statements of the physicians who attended him at about the time when the deed was executed that Gorges Hiely, who was eighty years of age, was very feeble. He was a sufferer from Bright’s disease, and his circulatory organs were in a state of arterial sclerosis, resulting in a functional derangement of all the organs. He was unable to care for himself. A nurse, who attended him during the last six and a half months of his life, said that he only uttered the words “Yes” and “No” during that period, and was not able to hold an intelligent conversation.

There was some evidence of his ability to read books at about this time, but there was abundant testimony of his great physical feebleness. Upon the evidence and under the principles declared in Estate of Reynolds, 169 Cal. 600, [147 Pac. 268], we must hold that the essential findings are supported. These were in substance that the deed was one of gift; that it was made without adequate consideration; and that it was executed in contemplation of death.

The appellant objects to the finding that the agreement of the Hely Estate Company to care for Gorges Hely was void as being ultra vires, and calls our attention to that part of the articles of incorporation of the said company declaring one of its purposes to be as follows: “To execute, accept or complete contracts, documents, or instruments of all kinds.” It is not necessary for this court to decide whether or not this finding is supported, because the judgment does not invalidate the deed from Gorges Hely to the corporation composed of his sons who were also his sole heirs.

The other findings amply support the judgment fixing the state’s lien and, therefore, conceding the correctness of appellant’s position relative to the finding of ultra vires, we cannot see how it has harmed the Abstract and Title Guaranty Company. The judgment and order are affirmed, Henshaw, J., and Lorigan, J., concurred.