Lahaney

On January 27, 1919, Joseph F. Lahaney was, and for more than ten years prior thereto had been, the owner of four parcels of land in the city and county of San Francisco. Two of these parcels of land had been purchased by him in 1909, one in 1913 and one in 1917. They all stood in his name alone, but it is con ceded that they were each and all the community property of himself and his wife, Ivy L. Lahaney. On January 27, 1919, Joseph F. Lahaney made and executed a grant deed of each and all of these four parcels of land to the two grantees named therein, viz.: his wife, Ivy L. Lahaney, and his sister, Catherine E. Lahaney, granting to each “an undivided one-half interest in and to all his right, title and interest” in said parcels of land. It is conceded that the consideration for this deed was nominal and that in substance and effect it was as to each of said grantees a deed of gift. This deed, while thus executed on the last-named date, was not delivered to either of said grantees until December 27, 1921, when it was delivered to Catherine E. Lahaney, the plaintiff herein and one of said grantees. The deed was recorded on November 19, 1922. Joseph F. Lahaney died intestate on…

I concur. I have been led to concur in the conclusion in this case and, in a large measure, in the reasoning upon which it rests. It seems that the death of Lahaney, prior to action of any kind or even knowledge on the part of the wife respecting the execution of said deed, is an important factor. Had he deeded the whole property to the sister, the wife, after his death, could have avoided it only as to the one-half thereof representing her share of the community estate. (Dargie v. Patterson, 176 Cal. 714 [ 169 Pac. 360 ].) If the deed is clear in its terms and shows the husband intended to give his sister the whole of the one-half of the community property over which he had testamentary power, and to exclude his wife therefrom, the deed, delivered after his death, is tantamount to a will or bequest which made this intention clear. In other words, the husband’s intention is the controlling element. If he intended to exclude the wife and the wife did not or could not act prior to the falling in of the community estate upon his death, then his intention must be given effect. The deed seems t to bear no other construction than that the husband did so intend to exclude the wife from…