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Posting for
Friday, July 26, 2002
by: Bert Rush
brush@firstam.com
AMANUENSIS/STATUTE OF
FRAUDS/DEEDS
Ama-whatsis?
The California Supreme Court has held that a deed signed by a
grantee, upon instructions of the grantor but outside of his presence, may
nevertheless be valid as the act of the grantor under the rule of
"amanuensis."
No, we're not kidding.
The case is Estate of Stephens, ___ Cal. 4th ___ (July 25,
2002). Here's what happened.
In 1978, Austin Stephens and his wife, Thelma, executed
"crossover wills" providing that when they died their properties
would be equally divided between their children, Lawrence and Shirley.
In 1983, Thelma was stricken with cancer. Daughter Shirley, who lived two houses from
her parents, provided 'round the clock care for Thelma, even as she (Shirley)
held down two jobs, until Thelma died in 1988.
After Thelma's death, Austin's health deteriorated as he
suffered from multiple maladies (diabetes, heart condition, prostate cancer,
lip cancer, high blood pressure, glaucoma and blindness). As she did with her mother, Shirley provided
'round the clock care for Austin until he died in 1994.
Unlike Shirley, Lawrence kept his distance from his parents'
woes. In 1989, as his father's condition
worsened, Lawrence moved from California to Colorado, and thereafter visited
his father only once or twice a year.
Meanwhile, in 1989, Austin was beginning to go blind, so he
executed a durable power of attorney naming Shirley as his attorney-in-fact. Among other things, the power of attorney
specified that Shirley had power to sell, convey and transfer Austin's real
property.
In 1991, Austin decided to give his home (apparently, his main
asset) to Shirley, due to her years of caring for her parents--and also due to
Lawrence's departure to Colorado. So it
was that a grant deed was typed by Agnes Stephens (ex-wife of Lawrence and a
co-worker of Shirley's), conveying the property from Austin to Austin and
Shirley, as joint tenants. In the presence
of Austin's best friend and neighbor, Delbert Catron, Austin (who was by now
blind) instructed Shirley to sign his name to the deed.
Shirley signed Austin's name to the deed and had it
notarized. Austin was not present at
the signing and notarization.
Later, Austin repeated that he wished to give the home to
Shirley, and he instructed her to record the deed. After it was submitted for recording, Austin was called by a person
at the Orange County Recorder's Office who inquired whether he intended the
transfer to Shirley as a gift. Austin
told the caller that was his intent.
After the deed was recorded, it was returned to Austin's home. Austin verbally acknowledged receiving the
deed, and instructed that it be held "in safekeeping."
Still later, Austin
discussed the gift to Shirley with neighbor Delbert Catron on several
occasions, and in conversations with his brother, Frank, Austin said he had
"disinherited Larry."
Within a few weeks of Austin's death in 1994, Lawrence opened
a probate for Austin's estate, and sought return of the property to the estate
for disposition according to Austin's 1978 will.
Before trial, Lawrence died.
His daughter, Katherine, continued the action as his
successor-in-interest.
The trial court ruled in favor of Shirley, holding that her
signing of the deed under "express authority" of Austin was
sufficient to make a valid conveyance, under the rule of
"amanuensis." (The Oxford
English Dictionary [2d ed. 1989] defines "amanuensis" as "one
who copies or writes from the dictation of another.") Said the trial court,
"Shirley's signature of Austin's name was a
purely ministerial, mechanical act and was
not an exercise by Shirley of any authority
under the power of attorney. The signature
is therefore deemed to be that of Austin
made by the hand of Shirley, and not the
signature of Shirley as an authorized agent
under the power of attorney or otherwise as
a fiduciary."
Katherine appealed.
During the pendency of the appeal, Shirley died, and her children
stepped in as her successors-in-interest.
The Court of Appeals reversed, holding that (under California
statutes derived from the common law statute of frauds) Shirley's authority to
execute the deed must be given in writing; the power of attorney was
insufficient for this purpose and, in any event, could not be used by Shirley
to make a gift of Austin's real property (especially to herself); and the deed
was not valid under the rule of amanuensis because it had not been signed in
the grantor's presence (citing Pitney v. Pitney, 55 Cal.App. 22 [1921]). Shirley's children appealed.
The Supreme Court reversed, holding that the deed was valid
under the rule of amanuensis, even in the absence of written authorization
signed by Austin, noting that amanuensis has been invoked as an exception to
the statute of frauds. Likewise, the
Court overruled the Pitney case requirement that such a deed be signed in the
grantor's presence.
In so holding, the Court was mindful of the unusual
circumstance that "Shirley claims to be an amanuensis despite the fact
that she is also the sole beneficiary of this transfer." In such a case, the Court said, "the
validity of the transfer must be examined under a heightened level of judicial
scrutiny."
Recognizing also that "unscrupulous parties" could
use the amanuensis rule to sidestep protections against frauds, forgeries,
perjury, undue influence and duress, the Court held "that the signing of a
grantor's name by an interested amanuensis must be presumed invalid." However, in this case the Court said the
"presumption has been successfully rebutted."
The Court concluded:
"Because her signature was a mere mechanical act, and not an
exercise of judgment or discretion, Austin's oral instruction to Shirley was
sufficient" to validate the conveyance.
Comment: Whew!
Why are we worrying about electronic signatures?
In a spirited dissent, Justice Kennard writes:
"A rule permitting an interested party to
sign another party's name to a document
covered by the statute of frauds creates an
exception to the statute that is so broad as to
defeat its
purpose, which is to prevent perjury
by requiring that important transactions be in
writing and signed by the parties."
In support of her view that "no one who stands to benefit
by the transaction implemented in the document may sign on another's
behalf," Justice Kennard cites the Restatement Second of Agency, Corbin on
Contracts, the major legal encyclopedias on the statute of frauds, and more
than a dozen decisions from Austin to Boston.
The Stephens case makes interesting reading, and one can
certainly empathize with Shirley and her children, but this "rule of
amanuensis" should never be relied upon by escrow/closing folk, or title
underwriters, in handling a given transaction.
Questions, comment, argument?
Just press the "reply" button, and, please, no unkind remarks
about the Golden State....
**********
Following Friday's posting, Greg Scanio (Columbia, SC) writes:
Maybe someone should tell Ted Williams' kids about amanuensis so we can finally put the Splendid Splinter to rest.
Bryan Merrell (Anchorage, AK) writes:
Another example of hard
cases making bad law. Had Shirley not
been a sympathetic party, I doubt the case would have gone this way, or we'd
ever even heard the word Amanuensis...which prior to this I thought meant the
worship of animals.
**********
Following last Friday's posting, Paul Trefz (King of
Prussia/Philadelphia, PA) writes:
Footnote: The historian Procopius was both amanuensis
and adsessor (legal advisor) to the 6th century Byzantine general Belisarius.
Norm Chernin (Glendale/L.A., CA) writes:
Is a corollary of the
amanuensis doctrine that the notary can pretend that the person appearing in
front of him/her is actually the grantor.
How does the grantor sign the notary's log?
Comment by Bert Rush:
Isn't anyone taking this seriously?
Marilyn Waters (Phoenix, AZ) writes:
What a shame about Ted's
kids. I'll bet if the word Amanuensis
was a baseball, he'd hit it out of the park which is where it should be.
