ELIZABETH H. LORD v. OLIVE S. HOUGH, and ASA D. NUDD, J. B. WOOSTER, and W. W. BRIGHT, Executors of the Last Will of Charles S. Lord, Deceased, 43 Cal. 581

By the Court, Niles, J.: The plaintiff was the widow of C. S. Lord, deceased. C. S. Lord died in July, 1868, leaving estate of the value of from one hundred thousand to two hundred thousand dollars, all of which was common property of plaintiff and deceased; and a will, appointing the defendants, Wooster, Knight, and Hudd, his executors. On the 7th of April, 1868, Lord conveyed to his mother, Olive S. Hough, one of the defendants, a parcel of land at Menlo Park, containing about six and three quarter acres, and then of the value of about four thousand dollars.

The deed purported to be in consideration of natural affection. Prior to the execution of the deed, C. S. Lord had instituted proceedings for a divorce against the plaintiff, and had obtained, by order of the District’ Court, the temporary custody of the three infant children of the marriage. This suit was pending when he died. In Hovember, 1867, he visited his mother, then a resident of the State of Hew York, and agreed with her that if she would leave her then residence and go to California, and take charge of the children, he would provide liberally for her support.

She consented, and came to this State in March, 1868, and from that time had the entire charge and care of the children, and resided upon the premises afterwards conveyed to her. The plaintiff claims that the conveyance should be decreed to be void, as being voluntary and in derogation of her rights in the common property. A deed of gift of a portion of the common property by the husband is not void per se. If the gift be made with the intent of defeating the claims of the wife in the common property, the transaction would be tainted with fraud.

In the absence of such fraudulent intent, a voluntary disposition of a portion of the property, reasonable in reference to the whole amount, is authorized by the statute which gives to the husband the absolute power of disposition of the common property as of his own separate estate. This doctrine was recognized, although not expressly decided, in the cases of Smith v. Smith, 12 Cal. 225: and Peck v. Brummagim, 31 Cal. 446. The pendency of proceedings for a divorce does not, of itself, interrupt the exercise of the husband’s powers.

The property does not come into the custody of the Court by the institution of the suit. The husband has still the control of it and full power of disposition of it. He is held to equal good faith in all transactions relating to it, as before the commencemnt of the suit. He is subject to the same restrictions in its disposal. He cannot make a voluntary conveyance of any portion of the property with the intent to deprive the wife of her claims, in anticipation of the divorce, any more than he could make such fraudulent disposition in anticipation of her widowhood.

The circumstances surrounding the transaction afford no sufficient evidence of fraudulent intent upon the part of Lord. No inference of such intent can be drawn from the relative values of the land conveyed by him to the defendant, and of the entire property. A gift of four thousand dollars to his mother, by a man worth over one hundred thousand dollars, is certainly not unreasonable in amount. Nor do the terms of the will of Lord show any fraudulent design in the conveyance to the defendant.

Whatever fraudulent intent he may have had at the time he made the will was consummated so far as he could consummate it by the execution of that instrument. We cannot assume that it affected every subsequent act in relation to the property. His intent in making the conveyance must be determined from the circumstances attending that transaction, and the intent evinced by Ms act of six months before could aid but little in such determination. On the other hand, the agreed facts show the utmost good faith upon the part of Lord.

The care and management of the infant children, which was being exercised by the defendant when the conveyance was made, and which continued thereafter, would constitute a valuable consideration, if it clearly appeared that the property was given in exchange for these Services. At least these circumstances are sufficient to show that Lord was not actuated by fraudulent motives in the transaction, but by a laudable desire to make provision for the care of his children, who were dependent upon him for support. Judgment affirmed.