Dirks v. California Safe Deposit & Trust Co.

CHIPMAN, C.

Plaintiff and Sarah L. Dirks were husband and wife; he was an old man, and she was a young woman; she died testate on March 21, 1900. On March 19, 1896, at San Francisco, they entered into the following written agreement :—

“Agreement between John J. Dirks and S. L. Dirks.

“I, John J. Dirks, transfer to my wife two thousand dollars, part of my money in the Humboldt Savings Bank on March 19, 1896, the interest to being drawn every six months for family use, and that I, S. L. Dirks, will not take this two thousand dollars out of the bank or banks before my husband's consent or before his death. I, S. L. Dirks, consider this money my share, and I will not and can’t claim no more. And if I, S. L. Dirks, expire before my husband, then the money, the two thousand dollars, be given back to my husband.

“(Signed) S. L. Dirks.

“John J. Dirks.”

On the same day, between 2 o’clock p. m. and 3 o’clock p. m., plaintiff withdrew the sum of two thousand dollars, and the testatrix deposited that amount with said society. Testatrix had no other money on deposit with the society except the dividends accumulated on said deposit. The account showed that testatrix drew out, July 8, 1896, $24.24, which was the June dividend of that year, and on December 16, 1896, she drew out one thousand dollars. She also drew out various sums at sundry times, ranging from twelve dollars to fifty dollars each, in 1897, 1898, 1899, and one amount January 5, 1900, leaving at her death a net balance to her credit of $488.15, which on June 5, 1900, was drawn by the defendant, the total credit, including dividends, amounting at that time to $2,159.83. The dividends, or interest, which she had the right to draw amounted to $159.83. A daughter of plaintiff testified in effect that the testatrix admitted to witness in September, 1896, that she (testatrix), had signed the contract.

[86]

“but she [testatrix] said that don’t amount to anything.” In this conversation with testatrix the witness stated to her that her father showed her the contract and she stated to testatrix its purport. This was all the evidence in the case.