Daniel v. Smith

Thornton, J. This action was brought to recover of the Hibernia Savings and Loan Society a sum of money specified in the complaint. A claim to this money was set up by Holland Smith, as the administrator of the estate of Abraham Fielding, deceased, and he was made a defendant that the validity of his claim as against the plaintiffs might be determined. Judgment was rendered for the plaintiffs, and Smith moved for a new trial, which was denied, thereupon Smith appealed from the judgment and order denying a new trial.

The sole question to be determined is whether the money sued for was given to Emma Daniel, wife of her co-plaintiff, by Abraham Fielding, in view of death. This must be determined upon the evidence adduced on the trial of this cause.

The plaintiffs proved that Fielding died on the 12th day of May, 1880, in the city of San Francisco, that a short time before the 7th day of May, 1880, he became suddenly ill, and that at the time he became ill, and on the day last named, he had a general account with the defendant, the Hibernia Savings and Loan Society, evidenced by a pass book, showing a bal[348]anee due him of $522.99. The pass book was put in evidence.

The plaintiffs then called David Cornfoot, who testified that on Friday morning Fielding requested him to take charge of his effects, consisting of bank books, money, and assignment of mortgages and deeds and other papers, and requested him to hold them in trust for him until he got well, and if he (Fielding) should die, he requested him to transfer them to his daughter Emma for her use; that this was the condition he received them under on the 7th day of May; that he (witness) was to keep them in trust for him, and if he lived and got well, he was to return all his property to him; that if he (Fielding) died, he was to give it to his daughter; that he (Cornfoot) kept the bank book until his death, and the evening Fielding died he delivered it to his daughter Emma Daniel. Fielding stated that he did not know whether he was going to live or die, and he wanted some one to look after him, to see that he would not want for anything, and to pay his bills, and to take general charge of him and his affairs while he lived. That was his object in transferring his effects to me. “ The instructions to me [said Cornfoot] in regard to the bank book were to keep possession of it while he lived, and in case he should require any of that money for his sickness to draw it on his order, and pay it out as far as his sickness required it; and if he should die before any of the money should be used out of the bank book, I was to give it, as above stated, to his daughter, with instructions for her to draw the money, and to appropriate it to her own use.” None of the money was used from the bank, there being sufficient without it.