Pendergrass v. Axx

[479]

THOMPSON (IRA F.), J.

Two actions were commenced in the court below by the plaintiff Pendergrass, the one against Josephine M. Axx individually for money had and received in the sum of $1200, and the other against her in her representative capacity as executrix of the last will and testament of Ada F. Brinkworth, deceased, to recover, first, the sum of $471.50, the value of certain property claimed by the plaintiff to which it was alleged the defendant asserted title; second, the sum of $3,300 for services rendered; third, $1309.60 to cover obligations of the deceased alleged to have been paid by plaintiff, and fourth, $197, being the amount of other obligations of the testator for which the plaintiff alleged he was being held responsible. The two actions were tried together, resulting in a judgment in the first action against the defendant in her individual capacity in the sum of $600, and in the second action against her as executrix in the sum of $429.14. The defendánt prosecutes appeals from both judgments. By stipulation the records are presented to us by one transcript. The respondent has afforded us no assistance, having filed no brief in support of his position. We shall, therefore,, under rule V of the rules of the Supreme Court and District Courts of Appeal, accept the statement of facts as presented to us by the appellant’s brief.

The nature of the two causes of action is sufficiently dissimilar to warrant our belief that to treat them separately will aid in an understanding thereof. We therefore turn to the action against appellant individually. Mrs. Brinkworth and the respondent lived together as man and wife, although unmarried, from September, 1918, to the time of her death on October 16, 1927. On May 3, 1918, an account was opened at the main office of the Security Trust & Savings Bank in Los Angeles by the deposit of $532.85 in the names of Mrs. Brinkworth and her sister, the appellant, as joint tenants. On February 24; 1924, both of them signed a statement as follows: “The within account, No. 314107, and all moneys credited to the same, or heretofore or hereafter credited thereto, is owned in joint tenancy and not as tenants in common, and shall be joint as to time, title and possession,, .and by mutual agreement is payable to either Ada F. Brinkworth or Josephine M. Axx whose names are signed hereto, or the survivor or survivors of them subject to the