Henry v. Hibernia Savings & Loan Society

NOURSE, P. J.

In 1899 a savings account was opened at the Hibernia Bank in the name of Annie Henry, which account was added to by both Mrs. Henry and her husband, P. W. Henry, for many years. On November 22, 1928, Annie Henry, who was then over eighty-four and partially blind, and her son, the plaintiff herein, went to the bank and transferred the money in this account—then $1771.88— to a joint tenancy in the names of Annie Henry and William R. Henry. This was done without the knowledge or consent of P. W. Henry. On January 10, 1929, plaintiff deposited $100 to this account and with accrued interest at the time of the trial the account was worth $2,304.96. P. W. Henry and his wife also had $12,000 in a joint tenancy account in a Burlingame bank. Mrs. Henry made her will not mentioning her husband among the legatees and when she died on May 18, 1931, her son, the plaintiff, was appointed executor of her will. As such he brought suit against P. W. Henry and others to recover the $12,000 in the

[143]

Burlingame bank and judgment went against him. P. W. Henry died a few months after his wife’s death and his daughter, Carrie Stuart,- was appointed his administratrix. Plaintiff started this action against the bank and the administratrix to collect the $2,304.96 which was in the joint account of himself and his mother. The trial court found that the money was community property, with the exception of the $100 deposited by plaintiff, and therefore part of the estate of P. W. Henry. Plaintiff appeals on the grounds that there is insufficient evidence to show that the money was community property and that even if it were all of the money should not go to the estate of P. W. Henry.

Appellant contends that the forming of the joint account was done with the knowledge and consent of his father; that he had contributed to the money in the Hibernia Bank at various times prior to the opening of the joint account by giving his mother money with the understanding that she was acting as his banker; that the agreement between husband and wife was that all of the property should be hers as separate property; and that Mr. and Mrs. Henry joined in making Mrs. Henry’s will. But respondents argue, and the trial court found, that these contentions are not based on fact. The only evidence concerning the consent and knowledge of the father was that he was in the dining room and Mrs. Henry and the plaintiff were in the kitchen when she made the statement that she was going to form the joint account. The evidence also shows that when P. W. Henry learned of the joint account he was very angry. In spite of the close relation and daily companionship of P. W. Henry and his wife and daughter, no mention was ever made of the fact that Annie Henry was acting as a banker for her son, and it was shown that the father and daughter did not lmow of the joint account until about one month before Mrs. Henry’s death. In answer to appellant’s argument that P. W. Henry intended all of the property to be Mrs. Henry’s separate property, respondents show that the $12,000 account in the Burlingame bank was in joint tenancy between P. W. Henry and Mrs. Henry. And as to the will, the fact that the husband was not mentioned as a legatee and the fact that all of their property, real and personal, was disposed of seems to indicate that it was only intended to take effect in case the husband predeceased