Demartini v. Allegretti

McFARLAND, J.

This is an action by the administrator of the estate of Gerolomo Demartini, deceased, to recover of the defendants G. Allegretti and G. B. De Martini certain money alleged to be the property of said estate in the hands of said defendants. Those two defendants in their answer admit .the possession of the money and that they received it from the deceased, and aver their desire and readiness to pay it to whomsoever it belongs; but they say that certain other defendants named in the complaint assert ownership of said money and they ask the court to determine to whom it should be paid. Other defendants claim to be entitled to the money by virtue of a certain written instrument hereinafter set forth, executed by the deceased on the twentieth day of October, 1896, and bearing that date. There were also

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certain additional defendants and interveners in the case who are heirs at law of the deceased, and who joined with plaintiff in claiming what is sought by the complaint. The court found that the money involved is the money of the estate, and rendered judgment accordingly for plaintiff. The said defendants, who claim under said instrument of October 20, 1896, and who filed a cross-complaint, appeal from the judgment and from an order denying their motion for a new trial

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The material facts in the case are these: In May, 1895, the deceased had about five thousand dollars deposited in some of the savings banks of Stpckton which was not bringing much interest, and on the 23d of that month he drew the money from the banks and gave it to the defendants G. Allegretti and G. B. Demartini for the purpose of having them invest it for him so that it might produce a better income. They took the money and very successfully invested it for him in mortgages, taking the mortgages in their own name. They gave him from time to time whatever of the money he wanted. While this condition of affairs existed, the deceased, on October 20, 1896, made and delivered to them the written instrument under which appellants claim and which is as follows:—

“Stockton, Cal., October 20, 1896.

“Messrs. G. Allegretti and G. B. Demartini (or the survivor of yourselves), Stockton, Cal.

“Having placed in your hands the sum of five thousand two hundred ($5200.00) dollari, gold coin, to keep, care for and invest for me in your names until the date of my death, I now hereby direct you as to the disposal of said sum of money in the event of my death'.