Hutchinson v. California Trust Co.

WOOD, J.

Plaintiff commenced this action to recover from defendant a sum of money claimed to be the community property of the plaintiff and his deceased wife. He prosecutes this appeal from a judgment in favor of defendant.

Plaintiff’s wife, Victoria Hutchinson, died on February 11, 1934. She left a will in which she gave to plaintiff all of her estate with the exception of $20. Peter Hutchinson, a son of decedent, contested plaintiff’s petition for probate of the will and for letters testamentary. A written agreement was made by plaintiff, Peter Hutchinson and another son, Tony Hutchinson, in which it was provided that after payment of certain administration expenses the net proceeds of the estate should be divided equally between Peter and Tony. Following the making of this agreement the will was admitted to probate and letters testamentary were granted to plaintiff. The inventory and appraisement showed the only asset of the estate to be a parcel of real property of the value of $1250. For a long period plaintiff took no steps in the administration of the estate and in 1938 he was removed as executor and William J. Clark was appointed special administrator. Thereafter Clark discovered an account in the head office of the California Bank in the sum of $17,289.62 in the name of decedent alone. He filed a supplemental inventory

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showing this sum as an asset of the estate. The special administrator was discharged and the California Trust Company, defendant herein, was appointed administrator with the will annexed. Defendant filed its final account showing the sum of $13,873.84 on hand for distribution, with a petition that this sum be distributed in accordance with the terms of the written agreement of plaintiff and Peter and Tony Hutchinson. To this petition plaintiff filed objections, claiming that the sum held by defendant was not the separate property of decedent but at the time of decedent’s death was community property. The probate court refused to try the issues presented on the ground that it was without jurisdiction to try title to the property. Plaintiff commenced the present action on December 9, 1939, to have the sum of $13,873.84, less the amount necessary to carry the will into effect, be declared community property and delivered to him as surviving spouse.

The trial court found that plaintiff ‘ ‘ made a gift of all the said money and his property to his wife, Victoria Hutchinson, and that said money became the separate money of Victoria Hutchinson by said gift”. Plaintiff contends that this finding is not supported by the evidence. It appears from the evidence that prior to October 27, 1930, plaintiff had in an account standing in his name alone in the Alhambra branch of the California Bank the sum of $14,488.11. On the date just mentioned decedent opened a savings account in the sum of $14,488.11 in the Alhambra branch of the California Bank in her name alone and the pass book was' delivered to her. This sum had been withdrawn by plaintiff from his account and was placed in decedent’s name with his knowledge and consent. From time to time additional sums were deposited in decedent’s account and on July 1, 1932, decedent withdrew $15,727.98 with the knowledge of plaintiff. On February 10, 1933, this sum was deposited by decedent in her name alone in an account in the head office of the California Bank. At the time this account was discovered by the special administrator and claimed for the estate it amounted to $17,-289.62. It is conceded that all of the money which plaintiff had in his own account in the Alhambra branch of the California Bank was community property prior to the opening of the account by decedent in the branch bank.