Paddock v. Anglo-California Trust Co.

NOURSE, P. J.

Plaintiff sued as the administrator of the estate of May Plowe to recover money deposited with defendant by deceased. Plaintiff had judgment for1

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$3,949.27, and the defendant appeals on a bill of exceptions.

The complaint contained the allegation that at the time of her death on June 22, 1923, May Howe was a depositor with the defendant, having a balance of $3,340.52 in the savings account, $559.47 in the Liberty bond account and one fifty-dollar

4½

Liberty bond. The appointment and qualification of her administrator were then set forth, followed by the allegation that the administrator had not withdrawn any portion of said accounts or the Liberty bond, and that demand was made upon the bank for payment, which was refused. The answer was a simple denial that the deceased had on deposit at the time stated any balance in either of said accounts or any Liberty bond.

The cause was tried wholly upon a written agreed statement of facts, and the trial court found in accordance with such statement. The cause was tried and is presented on this appeal without any distinction being made among the three separate accounts, the entire sum sued for being treated as a savings bank deposit as that term is commonly used. We will treat the case in the same manner, confining our discussion to the liability of a savings bank for the payment out of a savings account, after the death of the depositor, to the holder of a genuine order, accompanied by pass-book, but without notice of the death of the depositor.

In the stipulation of facts the order of the depositor was included, reading: “Los Altos, Cal. June 21st, 1923. Anglo California Trust Co., Sirs: Enclosed please find pass books. I wish to1 close my account and if possible to sell my Liberty Bond. Kindly pay the balance of my account to John F. Fonner. It is necessary to close the account at once as I am very ill and must have the money. Sincerely yours, (Signed) Mrs. May Howe. (Mrs. A. W. Bagot)” a witness.

It was also stipulated: “That the said John F. Fonner did not at said time or at all tell the said defendant of the fact that the said May Howe was dead, nor did the defendant make any inquiries in that regard; that said Fonner was personally known to the defendant and that defendant paid said above sums in good faith and in the regular course of business, as is the custom of this bank as to payment of ordinary checks and orders, and had no notice of