Heitman v. Cutting

KERRIGAN, J.

This action was brought to recover one thousand dollars, which sum, it is claimed, was received by defendant in trust for plaintiff. Judgment was for plaintiff, from which defendant appeals.

The facts are as follows: Plaintiff was for many years the gardener and coachman of one Francis Cuttingy deceased, and was unintentionally omitted by Cutting from any benefits under his will. On September 27, 1913, Mrs. Francis Cutting telephoned to her stepson, F. P. Cutting, that his father was ill in bed and desired to see him. Francis Cutting at this time was blind, seventy-nine years old, and had been ill for some months. Upon the son’s arrival Mrs. Cutting informed him that his father was very much distressed because he had not remembered his coachman, Henry Heitman, in his will. After greeting his sick parent, there was a short conversation between father and son, in which Francis Cutting, the father, ordered his son to draw the sum of one thousand dollars from the bank ‘ ‘ and give it to her for him. ’ ’ Appellant was in the room at the time, close to her husband’s bedside. The son was instructed to attend to it at once, and promised to do so. For some weeks prior to the death of Francis Cutting, and owing to his blindness, the son had a power of attorney authorizing him to sign checks on the American National Bank of San Francisco in the name of his father. After receiving these instructions, F. P. Cutting went to San Francisco the same morning and drew a cheek in the name of Francis Cutting on the American National Bank in the sum of one thousand dollars, and mailed the same to the First National Bank of Oakland, together with a letter containing instructions to place the same to the account of Mrs. Cutting. That evening he informed her of what he had done. The check was credited to the account of Mrs. Cutting, and a day or so after, on October 1, 1913, Francis Cutting died.

Upon these and other facts hereinafter stated the trial court found that the defendant, Alice M. Cutting, received to the use of plaintiff the sum of one thousand dollars, to be paid to plaintiff when Francis Cutting should die, and gave judgment accordingly.

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It is the claim of appellant that the judgment cannot be sustained upon the theory of a gift either