Freese v. Hibernia Savings & Loan Society

ANGELLOTTI, J.

Plaintiff administrator brought this, action to recover the sum of one thousand dollars, which, it. was alleged, belonged to the estate of his intestate, and had been converted by the defendants to their own use. The adtion was tried without a jury, and the court granted a motion for a nonsuit, on the ground that the money sued for was not shown to have been the separate property of Ellen Denigan. From the judgment entered in favor of the de

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fendants plaintiff appeals, and the only ground alleged for reversal is, that the court erred in granting the motion for a nonsuit.

The facts shown by the evidence material to this controversy are as follows, viz: Ellen Denigan was, prior to her marriage, Ellen McCabe. She and Francis Denigan (whose name was also pronounced Donegan or Dunnigan), intermarried on the nineteenth day of January, 1862, and they continued to be husband and wife to the time of her death, which occurred July 3, 1896. At the time of her marriage, she was the owner of two parcels of real estate in San Francisco—one on Bryant Street, conveyed to her in May, 1860, and one on Shipley Street, conveyed to her in September, 1861. By a deed executed August 13, 1884, she and her husband conveyed the Shipley-Street lot for two thousand dollars cash. On August 18, 1884, there was deposited with Father Maraschi, treasurer at St. Ignatius College, to the credit of “Frank or Ellen Dunigan,” the sum of eighteen hundred dollars. No other deposit was ever made on this account, and on July 6, 1886, the balance of principal remaining—viz., seventeen hundred dollars—was withdrawn. On the same day, July 6, 1886, account No. 133,269 was opened by the Hibernia Savings and Loan Society with “Frank Denigan or Ellen Denigan” by a credit of cash of seventeen hundred dollars.

On February 24, 1888, she conveyed the Bryant-Street land for a consideration of $6,750, which was paid her in cash, and on Monday, February 27, 1888, a deposit of thirteen hundred dollars was made to the credit of said account. This account 133,269 continued to October 19, 1896, a little over three months after the death of Ellen Denigan, when it was closed, the balance at that date being $2,413.33. The only two deposits made to the credit of this account were the seventeen-hundred-dollar deposit of July 6, 1886, and the thirteen-hundred-dollar deposit of February 27, 1888, all the other credits being dividends of interest earned by these two deposits. On the day this account was closed, with a payment by the bank of the balance of $2,413.33, October 19, 1896, account No. 212,145 was opened by the defendant bank with “Francis Denigan or James Denigan,” by a credit of cash, $2,413.33, the Francis Denigan therein mentioned being the