Turnbull v. Thomsen

MUSSELL, J.

This is an action by John Andrew Turnbull as executor of the estate of Frank Turnbull, deceased, to impress a trust upon the proceeds of a check in the amount of

[781]

$22,217.98 which was received by the decedent on or about February 25, 1957, as the net proceeds of the Sale of real estate, endorsed by him and delivered to the defendant Helen Thomsen. It is alleged in the complaint, in substance, that the proceeds of the check were placed in a joint bank account for convenience and were actually the property of the decedent and held for him; that the defendant obtained possession of the check by fraud and undue influence and that a relationship of trust and confidence existed between the decedent and defendant. Defendant alleges that the cheek was endorsed and delivered to her as a gift and is her property. Judgment was rendered for defendant and plaintiff appeals therefrom.

Decedent, Frank Turnbull, at the time of his death on March 11, 1957, was approximately 74 years of age and for many years had been an alcoholic. In 1949 he was residing in La Jolla, California, and had a small business next door to the Valencia Hotel. He spent considerable time in the coffee shop of this hotel and there became acquainted with defendant Helen Thomsen, who was employed at the hotel. In 1950 Turnbull commenced drinking again and from that time until 1955 was confined to his home nrach of the time. He also spent some time in a rest home and at the Patton State Hospital. During these years Miss Thomsen loaned him money when he needed it, saw that he had groceries in his home, had prepared food delivered to him, visited him frequently when he was in the state hospital, and looked after small business matters for him. In 1953, Turnbull’s larynx was removed and shortly thereafter he broke his hip. In October, 1955, he entered the Naval hospital in San Diego and remained there until January, 1957. During the time he was in the Naval hospital Miss Thomsen visited him almost daily, took care of his affairs for him, brought him food, made purchases for him, and he depended almost entirely upon her for assistance. In January, 1957, he was removed to the Golden Hill Hospital in San Diego, where he remained until he died and again Miss Thomsen was in constant attendance upon him, visited him almost every day and frequently several times a day, brought him his mail from La Jolla, the daily newspaper, magazines, medication, prepared food which he requested, and in every way saw that he wanted for nothing.