Castelhun v. San Francisco Savings & Loan Society

TYLER, P. J.

This action was brought by F. C. Castelhun, as executor of the last will of one Benedict Engler, to recover from defendant the sum of $3,988.82, the amount of a savings bank deposit which appeared, upon the books of defendant company, as being the property of one August Volpert. Plaintiff alleges in his complaint that Volpert had, in the latter part of April, 1917, made a parol gift of the same by delivering to Engler his pass-book covering the account. The trial court found that Volpert did not transfer the account or give the money to Engler as alleged, and rendered judgment in favor of defendant, and plaintiff appeals.

It is the claim of appellant that the evidence is contrary to and does not support the findings. It appears from the testimony of plaintiff himself that Volpert and Engler lived together, and that plaintiff was present at their home at Colma, San Mateo County, during the month of April, 1917, and that upon such occasion Volpert stated to him that he had given his pass-book covering the funds on deposit in respondent bank to Engler, who at that time had possession thereof. At this time plaintiff suggested to Volpert that in addition to the gift he had better make a will in Engler’s favor, and upon Volpert giving his consent thereto, plaintiff subsequently prepared a will by the terms of which all of Volpert’s property was left to Engler. This will was executed by Volpert on May 13, 1917. It further appeared in evidence that on March 12, 1919, Engler died, and that Volpert survived him about four months. At the time of Engler’s death the pass-book was found among his possessions. Defendant, to disprove the claim of plaintiff that the evidence above recited showed a completed gift

in praesenti,

introduced testimony to the effect that on two occasions

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after the alleged gift Volpert personally presented the passbook at respondent bank and withdrew money from his account. The withdrawals were made on August 27, 1917, and on December 28, 1917. On each of these occasions Volpert signed a receipt at the bank made out on a printed form for the amount of money he withdrew. Further evidence showed that the bank-book was presented to the bank on July 1, 1917, and again July 1, 1918, and dividend entries were made therein to the credit of Volpert, all of which acts occurred subsequent to the date of the alleged gift. Under these facts it is the claim of respondent that the evidence shows that there never was a completed gift