Comastri v. Burke

[432]

NOURSE, P. J.

Jessie H. Paterson has appealed from an adverse judgment in a quiet title action, instituted by respondent Alcide Comastri, with respect to the proceeds of a home which had stood in the names of Mary D. Comastri, the deceased wife of said Alcide Comastri, and said Alcide Comastri as joint tenants. Mary D. Comastri was the sister of Mrs. Paterson and will hereinafter be called sister Mary. Mrs. Paterson’s claim was based on the contention that the home was bought by sister Mary with money taken from a joint account in which Mrs. Paterson had an equal interest, that the withdrawal by sister Mary of much more than half of the funds in said account invaded Mrs. Paterson’s interest and that she could follow her joint tenancy interest in the home so bought. Respondent Comastri took the position that the account was not a true joint account but that sister Mary was the true owner with full right of disposition during her lifetime, which position was upheld by the trial court. Pending the appeal Mrs. Paterson died and Stanley Burke, special administrator of her estate, was substituted as appellant.

The following facts are undisputed.

In May, 1934, an account was opened at the San Francisco Bank in form payable to sister Mary, Mrs. Paterson or Agnes G-. Nye, or to the survivor of them. Agnes G-. Nye was a sister of the other two depositors and will further be called sister Agnes. The initial deposit of more than $12,000 was made from funds of sister Mary. Following the death of sister Agnes, sister Mary in July, 1941, withdrew the increased balance of the account and placed it in the same bank in an account in form payable to sister Mary or Mrs. Paterson or to the survivor of them. In July, 1945, sister Mary married respondent Comastri and in the following August she withdrew the increased balance of the second account and placed it in a third account in the same bank payable in the identical manner as the second one except that sister Mary was now named as Mary B. Comastri. From this account sister Mary withdrew on October 13, 1945, more than $19,000 which she applied to the purchase of the home, the title to which was taken in the names of herself and her husband as joint tenants. She died on January 8, 1947. All withdrawals from the three successive accounts were made by sister Mary only, all deposits in these accounts over and above the transactions already stated were made by her from her own funds, except one deposit of $1,578.22 made by Mrs. Paterson on October 23, 1934. It was, however, found by the court that the funds then deposited were also the property of sister