Lo Bue v. Porrazzo

MOORE, P. J.

From a judgment barring plaintiff’s recovery of moneys alleged to have been held in trust for her by defendants, plaintiff appeals.

The factual background behind the issues adjudicated is as follows: On the 16th day of May, 1929, one Joseph Porrazzo, husband of appellant, departed this life and appellant, as surviving widow, was appointed administratrix of his estate and as a result of the probate proceedings all of the property of decedent was distributed to her.

During some 18 months prior to Joseph’s decease, he and his parents, respondents herein, maintained an account in joint tenancy with the federal branch office of defendant bank, payable to either of said respondents or to decedent. From time to time, the decedent deposited various sums of money and on the 2nd day of January, 1929, decedent withdrew a large sum on deposit, leaving a balance of $10,000. Thereafter, on the 27th day of May, 1929, respondents withdrew the $10,000 from the federal office and deposited it with the head office of the bank to their own credit. Appellant filed this action July 21, 1939.

The court found and the evidence abundantly supports the finding that the intention of the parties was that all moneys so deposited in the federal office should be held in trust for the use and benefit of decedent and pursuant thereto, the court concluded that plaintiff was the sole distributee and heir at law of decedent. No mention is made that decedent

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left a will but the presumption is that all his property constituted a community estate of himself and appellant.

Under such findings appellant should have been entitled to a decree awarding to her the money on deposit with defendant bank after the passing of decedent. However, respondents pleaded various sections of the statute of limitations and laches. Basing the judgment upon such pleas the court determined that the right of plaintiff as such distributee was barred by the provisions of sec. 337, subd. 1; sec. 338, subds. 3 and 4; sec. 339, subd. 1, and sec. 343, Code Civ. Proc.; also that her right was barred by laches. On this appeal appellant contends that, by reason of misrepresentations made by respondents to her, she was induced to refrain from taking action for a longer period than that permitted under the statute of limitations or by the rule of laches, and that respondents are therefore estopped to plead such defenses.