Some months prior to his death, John R. Corker made and acknowledged his' deed to certain real estate, situate in the county of Los Angeles, wherein his son, residing in the territory of Utah, was named as grantee. The day prior to his death, he delivered the deed to one White, who carried it to E. F. Spence, stating that Corker, the grantor, desired him to record the same, and then deliver it to the grantee, John Frederick Corker. Upon the following day the grantor died, and subsequently the deed was recorded by Spence, and delivered in pursuance of his instructions. This action was brought, and the appeal is prosecuted, by the widow and the remaining heirs at law of the deceased, against the grantee in said deed, asking that the deed be canceled, and the realty therein described be declared the community property of the estate of said deceased, upon the *309ground that said deed was never delivered to the grantee, and for the further reason that it was made in fraud of the rights of the wife to the community property. Plaintiffs were nonsuited, and the evidence heretofore quoted is substantially all that is found in the record.
The judgment should be affirmed, as evidence to support the complaint is lacking in many respects.
An issue is created as to whether the realty is separate or community property, but plaintiff offered no evidence to support the allegations of the complaint in this regard. Again, conceding the realty to be community property, a deed of gift by the husband of community property, in order to be a fraud upon the wife, must be made with a fraudulent intent, “A deed of gift of a portion of the common property, by the husband, is not void per se.” (Lord v. Hough, 43 Cal. 585.)
In this case, neither the complaint nor the evidence indicates any attempt to defraud the wife of her rights; and as far as the record discloses, the realty transferred to the son may have been a just and proper advancement, leaving an abundant residue for the widow and remaining heirs.
An objection was sustained to the following question asked the witness Spence: “ If after you received this deed from Mr. White at that time, John E. Corker had called for it or sent for it, would you have delivered it back to him?” The ruling of the court was correct, and is directly supported by Dean v. Parker, 88 Cal. 288, where the question addressed to the witness was: “ Supposing the father had come in a year after he left the deed with you, or in two or three weeks afterwards, and asked you for the deed again, would you have given it to him?” As to this interrogatory the court said': “The objection to this question should have been sustained, as the evidence sought by it was irrelevant. The matter to be determined was, what was the intention of plaintiff's father in leaving this deed with the witness; and for the purpose of arriving at this intention, evidence of any declarations made or conversa*310tions had in relation to that subject, by the said John Dean, at that or any subsequent time, would have been competent; but what the witness would have done if the deed had afterwards been called for can have no tendency to show whether the father did or did not intend in what he did to make a delivery of the deed for the benefit of his son.”
The evidence is entirely lacking to prove a non-delivery of the deed to the grantee. Conceding the law to be as appellant claims it, still it is not shown but that the deed was delivered to Spence in pursuance of a prior mutual understanding and agreement between the parties.
There is nothing in the record to indicate but that every act of the grantor pertaining to the transfer of the realty was done with the consent and assent of the grantee. It is not even shown that White was authorized to deliver the deed to Spence for any purpose, or under any instructions from the grantor. The burden of proof was upon the plaintiff, and the allegations of the complaint in many respects stand without support in the evidence.
Let the judgment be affirmed.
Harrison, J., and Paterson, J., concurred.