Conneally v. San Francisco Savings & Loan Society

NOURSE, J.

The plaintiff, as guardian of the minor children of Delia Murphy, deceased, brought this action against the defendant Savings Bank and against the surviving husband of their mother, suing him as an individual and as administrator of the mother’s estate. The children are the issue of a former marriage of their mother. Their natural father died on October 15, 1915; and left an estate, all of which passed to his surviving wife and became her separate property. The mother of the surviving wife deposited a portion of this property, the sum of three thou

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sand dollars, with the defendant bank. In September, 1920, she married the defendant Patrick Murphy. There was no issue of said marriage. On March 7, 1922, Delia Murphy, formerly Delia Conneally, died intestate, leaving beside the defendant Murphy the three minor children, for whom the plaintiff herein sues, as the heirs of her estate. On July 14, 1921, the said Delia Murphy caused the defendant bank to transfer from her separate account on deposit in said bank the said sum of three thousand dollars into a new account, which was thereupon opened in the names of “Delia Murphy and Patrick Murphy, payable to either or to the survivor of them.” At the same time a written agreement was executed by Delia and Patrick Murphy wherein it was stipulated that all moneys then or at any time deposited by them or either of them with defendant bank to the credit of said account should be payable to either of them or to the survivor of them “without reference to the original ownership of the moneys deposited.” This action was brought to compel the defendant Murphy to pay the moneys into his hands as administrator of the estate of Delia Murphy on the theory that said moneys were the separate property of the deceased, Delia Murphy, and as such should be accounted for in her estate. The case was tried by the court without a jury and judgment was rendered as prayed in the complaint. From this judgment the defendant appeals on a record made under section 953a of the Code of Civil Procedure.

On this appeal the appellant relies upon the well-settled rule that when a written instrument is executed by a husband and wife on opening* an account with a bank agreeing tha.t the deposit when made and all accumulations thereof should be held by them as joint tenants with the right of survivorship, each is seised of the whole estate from the creation of the tenancy and the whole vests in the survivor without regard to the prior ownership or title to the property.