Denigan v. Hibernia Savings & Loan Society

HARRISON, J.

July 6, 1886, Ellen Denigan deposited with the Hibernia Savings and Loan Society the sum of seventeen hundred dollars, and received from the bank a pass-book entitled “Ho. 133,369, Frank Denigan or Ellen Denigan in account with the Hibernia Savings and Loan Society.” There is no evidence of the form in which the account was opened upon

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the hooks of the hank, hut it is assumed that it was opened in the same form in which it was entered upon the pass-book. February 27, 1888, an additional deposit of thirteen hundred dollars was made with the bank and entered upon the passbook. Frank Denigan was the husband of Ellen, and at the times of the above deposits the moneys' so deposited were the separate property of Ellen. She died July 3, 1896, and at the time of her death the moneys so deposited, together with fifty-six dollars and twenty-five cents interest that had accumulated thereon, remained with the bank to the credit of the above account. October 19,1896, her surviving husband caused two thousand four hundred and thirteen dollars and thirty-three cents to be transferred upon the books of the bank from this account to a new account, and received from the bank a pass-book entitled “No. 212,145, Francis Denigan or James Denigan in account with The Hibernia Savings and Loan Society.” James Denigan was the nephew of Francis, and the reason assigned for this transfer was, that on the death of Francis the nephew could distribute the amount then in bank to himself and his two sisters. November 28, 1897, Francis gave to one M. D. Connelly the passbook last named, with an order in writing directing the bank to pay to Connelly, out of said deposit, the sum of one thousand dollars; and upon the presentation of this order with the pass-book that amount was upon the next day paid to him. Francis Denigan died November 29, 1897, and this payment was not made until after his death. Thereafter James Denigan, the plaintiff herein, presented the pass-book to the bank and demanded payment of the amount of said account without any deduction for the amount paid to Connelly, and upon •the refusal of the bank commenced the present action to recover from it the sum of two thousand four hundred and sixty-three dollars. After the death of Francis Denigan the court appointed a special administrator of his estate, who thereupon notified the bank that he claimed the money held under this deposit, and at the instance of the bank was made a party defendant, and filed an answer setting forth the claim of the estate to the money. Letters of administration upon the estate of Ellen Denigan were issued to A. C. Freese, the public administrator, and he filed a complaint in intervention claim