Fennell v. Drinkhouse

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HAYNES, C.

Winifred Fennell, deceased, was the wife of the plaintiff William Fennell. She died in the city and county of San Francisco, November 28, 1899, leaving estate therein, and the defendant Drinkhouse was duly appointed special administrator of her estate. On February 15, 1900, as such special administrator, be took possession of the sum of four thousand two hundred and twenty-three dollars and fifty-seven cents then on deposit with the Hibernia Savings and Loan Society in the name of Winifred Chappie (by which name the deceased was sometimes known), and this action was brought by the plaintiff against said Drinkhouse to recover said money, claiming that it was acquired by the plaintiff and said Winifred after their marriage, and that it was community property to which he was entitled.

After the appointment of defendant Drinkhouse as special administrator, a will executed by said deceased in her lifetime was found and probated, and Maria Teresa Elliott was duly appointed and qualified as executrix; but said William Fennell having taken an appeal from the order probating said will, her letters were revoked and she was appointed special administratrix of said estate succeeding defendant Drinkhouse, and as such she filed a complaint in intervention in this action, claiming that the whole of said moneys were the separate property of said Winifred in her lifetime, and belonged to her estate, and that she as special administratrix, was entitled to the pos-' session of the whole thereof.

The plaintiff answered said complaint in intervention, the cause was tried by the court, and findings were for the plaintiff, to the effect that he was entitled to eighteen hundred and fifteen dollars and seventy-seven cents (part of said sum of four thousand two hundred and twenty-three dollars and fifty-seven cents), and costs, and that the intervenor was entitled to the remainder of the fund, less disbursements made by defendant Drinkhouse as special administrator, and judgment was entered accordingly. This appeal is by the intervenor from the judgment, and from an order denying her motion for a new trial.

. Appellant formulates three propositions upon which a reversal is claimed, and states that the various assignments of

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