Klindera v. Smith

SHINN, J.,

pro tem.

Action to recover money by one claiming to be the donee thereof. Plaintiff and intervener, Barbara Mikuska, are respectively the surviving brother and sister of Mike Klindera, deceased, of whose estate Georgina Smith, a daughter of plaintiff, is administratrix with will annexed. Mike Klindera in July, 1934, was a patient in a hospital in Oakland, where he underwent an operation on July 12th, following which he died on the night of July 14th. He had on deposit at the Citizens National Trust & Savings Bank in Los Angeles the sum of $10,150. On July 11th, plaintiff, at the request of Mike Klindera, telephoned to a

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notary public, who came to the hospital, drew a will for Mike, brought it to him the following morning for signature and apparently it was then executed. After the notary left, Mike said: “Frank, there is a bag over there; hand that to me”, which Frank did. According to the latter's testimony, the following occurred: “After I handed the bag over to him, he says, ‘Open it.’ I did so, and he took out several—well, some stock—Durant stock, something of that sort; three or four. He says, ‘These are worthless.’ He says, ‘Hand me that savings deposit bank book, ’ which I done. He handed it back to me and says, ‘This is yours, and this will about make us even. ’ I took the book, looked at it, and I says to him, ‘Mike, I guess you will be all right.’ ‘No’, he says, ‘ Take it. ’ I took the book, and went to the bank and— . . . He told me to be sure and tend to it.” Plaintiff went to an Oakland bank with the pass book, where he was given a draft on the Los Angeles bank and a signature card for the signatures of his brother Mike and himself, which plaintiff testified were signed by both on July 12th. On July 14th there were delivered to the Oakland bank the draft signed by Mike Klindera,' the signature card, and the pass book of the Los Angeles bank. The draft and pass book were forwarded to the Los Angeles bank and the Oakland bank issued a savings bank pass book to “Mr. Klindera or F. J. Klindera”, showing a deposit on that day of $10,000, an additional amount of $150 interest being entered at a later date upon payment of the draft for $10,150 by the Los Angeles bank. The signature card read in part as follows: “(2) That all funds now to the credit of or which may hereafter be placed to the credit of this account are and shall be the property of the .undersigned as Joint Tenants to be withdrawn as follows: Upon the signature of either of us or our survivors.” Plaintiff claims, and the court found, that Mike Klindera on July 12, 1934, made a gift of the money in the bank to plaintiff, and that on July 14, 1934, plaintiff and Mike Klindera opened said joint savings account with the Oakland bank and that the bank gave credit' to such joint savings account on July 14, 1934.