Corato v. Estate of Corato

SHENK, J.

Joseph Cor ato died on or about the third day of October, 1922, in the county of San Joaquin, leaving estate therein. The plaintiff is the administratrix of said estate. On February 28, 1923, she filed two claims against the estate, which were rejected by the court. She then filed her complaint thereon in two counts. The first count was

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for the recovery of the sum of $600, with interest, alleged to have been placed in the hands of the deceased in 1903 as a trust fund to be held and managed by the deceased for the use and benefit of the plaintiff. The second count was for services alleged to have been rendered by the plaintiff to the deceased in the capacity of a housekeeper and as manager of a boarding and lodging house run by the deceased, which compensation it is alleged the deceased agreed to pay to the plaintiff at the termination of said services at or before his death. A demurrer to both counts was interposed and we think properly overruled. On the denials of the answer and the special plea of the statute of limitations the cause was tried before the court sitting with a jury. As to the first count the jury rendered a verdict in favor of the plaintiff for the sum of $2,322, being the principal sum of $600 and interest thereon from February 10, 1903. The court adopted the verdict, submitted concededly in an advisory capacity, made its findings and rendered a judgment accordingly. As to the second cause of action the jury found for the plaintiff in the sum of $5,500 for services rendered continuously for twenty-three years prior to the death of the deceased, and a separate judgment was entered on that verdict. From such judgments an appeal is prosecuted on behalf of the estate and the matters are submitted on a single record.

The defendant urges the insufficiency of the evidence to justify the findings as to the first count and the verdict as to the second count. With reference to the first count, the court found that on or about February 10, 1903, the plaintiff deposited with the deceased the sum of $600, which was her sole and separate property; that it was understood and agreed by and between the plaintiff and the deceased that said sum of $600 be held in trust by the deceased for the plaintiff and be kept by the deceased as a depositary thereof; that the deceased was to invest the same, and the proceeds derived therefrom were to be held by the deceased for the use and benefit of the plaintiff until the same should be demanded by the plaintiff; that the deceased invested said fund in property, the character and description of which is unknown to the plaintiff, and commingled said fund with his own property and belongings and neglected and failed to keep a correct or any account of said trust