Bollinger v. Wright

COOPER, C.

to quiet title. Plaintiff recovered judgment. This appeal is by defendant from the judgment and order denying his motion for a new trial. The court found the allegations of the complaint to be true, which are to the effect that plaintiff is "the owner in fee and entitled to the possession of the premises described, being a lot on Twenty-fifth Street in San Francisco; that defendant, as administrator of the estate of Mourning E. Bollinger, deceased, claims an estate or interest therein adverse to plaintiff;

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that .said claim is without right, and the said estate has no right nor title to said property. In order to discuss the legal propositions contended for by appellant, it is' necessary to state briefly the facts, which are in substance as follows: Mourning E. Bollinger, deceased, and plaintiff were husband and wife for twenty-six years prior to her death, which occurred in January, 1896. They had no children. Prior to the year 1887, a sister of the deceased, who was the wife of one Brown, died, leaving several small children, the oldest being about seven years of age. Plaintiff and deceased were then poor, and deceased had no separate property of her own, but with the consent of plaintiff she took the children of her dead sister to raise and educate. At the time of his wife’s death Brown was a member of the American Council of the Order of Chosen Friends, and was carrying a benefit certificate of three thousand dollars, payable to his wife in ease of his death. After the death of his wife, and after the plaintiff and deceased had taken charge of his children, Brown had the benefit certificate made payable to deceased in case of his death. Prior to the death of Brown’s wife plaintiff had paid and assumed an indebtedness of about three hundred dollars for assessments due by Brown on said certificate. Brown agreed to pay to plaintiff and deceased the sum of fifty dollars per month for the care of his said children, but was in arrears in his payments. It was agreed between Brown and plaintiff and deceased that the benefit certificate should be assigned in satisfaction of the indebtedness due by Brown to plaintiff, and that plaintiff should thereafter keep up and pay the assessments upon the said certificate. Plaintiff thereafter paid the assessment upon the said certificate, and he and deceased supported and cared for the four children of Brown until his death, and after that time. After the death of Brown the amount of the benefit certificate was collected, and with the proceeds a lot was purchased on Jackson Street in the city of San Francisco. This lot was taken in the name of deceased, with no mention of her husband therein. A mortgage was given upon the property for three thousand dollars, the mortgage note being signed by both plaintiff and his wife. Plaintiff paid the interest on this mortgage. There is no evidence tending to show that the benefit certificate was a gift to