In re Estate of Carmody

Belcher, C. Fannie Carmody died intestate, in the county of Sacramento, on the fourth day of September, 1889. She left surviving her John Carmody, her husband, and five children of a deceased sister, of whom Niel Grant was one, but no issue, father, mother, brother, or sister.

On the 24th of October, 1889, Niel Grant filed in the superior court of the county a petition asking that letters of administration on the estate of decedent be issued to him. In his petition he stated, among other things, “that said deceased left estate in the said county of Sacramento, consisting of real and personal property; that the value and character of said property, so far as known to your applicant, are as follows, to wit: Eight hundred dollars or thereabouts in Sacramento Savings Bank; real estate in California, value unknown; furniture and personal effects, value unknown.”

Two days later the surviving husband filed his petition for letters of administration on the estate. He stated in the petition, among other things, “ that she (decedent) left estate in said county, -which consists of an interest (it is claimed) in certain moneys in the Sacramento Bank, on deposit therein; that the value of said estate is unknown to said petitioner, and the same consists wholly of personal property.”

When the petitions came on to be heard, Carmody [618]was called as a witness, and testified to certain facts which tended to show that, during her last illness, his wife made, or attempted to make, to him a gift of the money she had on deposit in the Sacramento Bank. He was then, on cross-examination, asked and answered certain questions, as follows:—

“ Q,. Mr. Carmody, do you want to be administrator of Fannie Carmody’s estate? A. Well, of course; I did not think, when she made this assignment, — she said there would be no need of an administrator. Those were the words she spoke. Q. Do you want to be administrator of your wife’s estate? A. Yes, sir; of course. Q. Well, what estate did she leave? A. I do not know as she left any.”

Counsel for Grant then offered, and read in evidence, a complaint filed by Carmody, on October 9, 1889, in an action instituted by him against the Sacramento Bank to recover the moneys deposited therein by Fannie Carmody. The complaint contained, among others, the following averments: —

“ That on the twenty-second day of August, 1889, the said Fannie Carmody sold, transferred, conveyed, and delivered unto this plaintiff, by and with the consent of this defendant, the said bank-book, together with all the moneys, as aforesaid, deposited by her in said bank, and the plaintiff has ever since been and now is the owner and holder of said bank-book and of the moneys so deposited by her in said bank;