O'Brien v. United Bank & Trust Co.

STURTEVANT, J.

The plaintiff sued the defendants to recover a bank deposit. The bank appeared and answered^, The defendant Cosette D. Allan, as administratrix of the estate of Margaret J. Allan, appeared and answered and filed a cross-complaint. The cross-complaint was answered, and on the issues so framed a trial was had before the court sitting without a jury. The court made findings in favor of the defendant administratrix, and from the judgment entered thereon the plaintiff has appealed and has brought up a bill of exceptions.

On the twenty-seventh day of August, 1903, Margaret J. Allan was adjudged incompetent and a guardian was appointed. She was never restored to competency and her guardian continued to act down to the date of Mrs. Allan’s death. Subsequent to August 27, 1903, the plaintiff and deceased opened a purported survivor account with the defendant bank. By the terms of that purported agreement, upon the death of either the survivor would own absolutely and be entitled to the whole of the residue of the deposit. Mrs. Allan died on the twelfth day of July, 1919. Shortly thereafter the plaintiff made a demand on the bank, and her demand was refused. This defendant, as administratrix, also made a demand which was refused. Later this action was commenced.

The plaintiff contends that the purported agreement under which the plaintiff and Margaret J. Allan opened and maintained the survivor account constituted a valid and enforceable contract. The defendant opposes that contention, claiming that the purported agreement was void, and she cites section 40 of the Civil Code: “After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right, until his restoration to capacity.” The plaintiff replies that the judicial determination was had pursuant to sections 1763-1767 of the .Code of Civil Procedure, and that those sections deal with

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persons who are “insane, or from any cause mentally incompetent,” and that the Civil Code refers to “a person of unsound mind.” The plaintiff argued that the Civil Code section, therefore, refers to a different class than the class mentioned in the sections of the Code of Civil Procedure. We think the point cannot be sustained. By its terms section 38 of the Civil Code is limited to persons entirely without understanding. Section 39, by its terms, applies to a person of unsound mind, but not entirely without understanding. And section 40 is unlimited and applies to a person of unsound mind—whether entirely or partly without understanding. There is nothing on the face of the statutes to warrant the construction contended for. The rule declared in our Civil Code obtains in most jurisdictions. (32 C. J., p. 731.) We find no case in which it has been limited as plaintiff contends.