Bassi v. Bassi

WILSON, J.

Defendant has appealed from a judgment rendered in favor of plaintiff in an action for an accounting of moneys that he entrusted to her when he went into the military service. She has also attempted to appeal from an order denying her motion for a new trial, a nonappealable order.

Plaintiff and defendant were married on December 8, 1943. (Simultaneously with the entry of the judgment in this action an interlocutory decree of divorce was entered in favor of plaintiff against defendant in another action.) Prior to the marriage plaintiff had been inducted into the military service. The court found that he had previously accumulated as his separate property approximately $7,000; that in contemplation of being sent outside the continental limits of the United States and into battle zones he delivered to defendant his separate property consisting of moneys, bank accounts and accounts receivable that had accrued from his business prior to the

marriage;

that the funds were deposited in bank accounts in the joint names of plaintiff and defendant; that plaintiff reposed the greatest confidence and trust in his wife and believed that she would deal fairly and justly with him and by reason thereof he delivered his separate property to her for the purpose of preserving the same for him pending his return from military service; that the money remained plaintiff’s separate property and was put in the joint control of plaintiff and defendant solely because of the exigencies and uncertainties of the war; that in violation of the trust and confidence reposed in defendant, and without authority so to do, she misappropriated $3,100 consisting of two sums, $1,900 which she “lost at the races” and $1,200 used by her to pay loans or premiums on insurance policies on the life of her former husband. Judgment was rendered against defendant for said amounts.

Defendant contends that there is no evidence supporting the finding that the money placed in the joint tenancy accounts was given to defendant in trust. She relies on the presumption of conjoint ownership of a fund in equal shares when a joint tenancy account is created substantially in statutory form, citing

Wallace

v.

Riley,

23 Cal.App.2d 654, 664 [74 P.2d 807]. The court there held that the existence of

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