McCarthy v. Holland

RICHARDS, J.

This is an appeal from a judgment in favor of plaintiff, and from an order denying a new trial in an action originally commenced against the Hibernia Savings and Loan Society to recover a sum of money on deposit with that institution, and by which the defendant Patrick Holland, administrator, etc., was interpleaded upon his assertion of an adverse claim to said deposit.

The facts of the ease are substantially undisputed and may be summarized as follows: Julia McCarthy, the plaintiff herein, was the niece of Mary Anne Holland, and between them existed strong ties of confidence and affection. On and prior to April 20, 1911, Mary Anne Holland was the owner

[496]

as her separate property of a sum of money in .excess of six thousand dollars, which was on deposit with the Hibernia Savings and Loan Society. On said last-named day Julia McCarthy was at the home of Mary Anne Holland, who was quite ill and who, in fact, had but a short time to live, when the latter caused a notary, public to be called for, and upon his arrival, and in his presence, executed and delivered to the plaintiff the following writing:

“San Francisco, Cal., Apr. 14, 1911.

“The Hibernia Savings & Loan Society, San Francisco, Cal.

‘ ‘ Gentlemen.-—

“Please transfer the balance due on my account No. 193-352 to an account in the names of Mary Anne Holland or Julia McCarthy, payable to either or to the survivor.

“Mary Anne Holland.

“Witness: A. G. Sala. 414859

her

“Julia X McCarthy. mk.

‘

‘ Witness: Scully. ’ ’

At the time of the delivery of this document to the plaintiff, Mary Anne Holland stated to her, and to those present, that she wanted Mrs. McCarthy to have the money which was on deposit with the Hibernia Bank, expressing at the same time her affection and regard for her; and she also and on that day handed to her the pass-book showing the fact and the amount of the deposit. On the following -day the plaintiff presented to the Hibernia Savings and Loan Society the above document, together with the pass-book of Mary Anne Holland, and thereupon the bank closed the individual account of Mary Anne Holland and opened a new account, in which the sum on deposit formerly to the credit of Mary Anne Holland was made payable to “Julia McCarthy or Mary A. Holland, to either or to the survivor of them.” The bank also issued and delivered to the plaintiff a new pass-book showing such deposit, which the plaintiff carried back to Mrs. Holland, who directed her to keep it. On the same day the plaintiff drew from said account the sum of five hundred dollars, which she applied to her own uses with the knowledge and full concurrence of Mrs. Holland. On the 7th of May, 1911, Mary Anne Holland died, and there