Zeller v. Jordan

De Haven, J. Action to recover from the defendant, the German Savings and Loan Society, the sum of niue[146]teen thousand eight hundred and seven dollars and seventy-four cents, deposited with said defendant by Sophia Stein eke, who afterwards became the wife of plaintiff, and is now deceased. The defendant, Jordan, is the executor of the last will of the said Sophia, and is made a party to this action by reason of the fact that he claims said deposit as a part of the estate of his said testator. The superior court rendered judgment in his favor, and the plaintiff appeals.

The plaintiff alleges in his complaint that his deceased wife, in the month of January, 1886, “ in consideration of the love and affection she had and bore unto plaintiff, and also for other good considerations her thereunto moving, made an assignment in writing” of her demand against the German Savings and Loan Society, arising out of the deposit before referred to, and that he “ has ever since been, and still is, the lawful owner thereof, and of all accrued dividends thereon.” The action was tried by the court without a jury, and the court found that the deceased never assigned to plaintiff, by way of gift or otherwise, her said demand against the German Savings and Loan Society; and the only question necessary to be considered on this appeal is whether this finding of the trial court is sustained by the evidence.

1. It appears from the evidence that the deceased wife of plaintiff was subject to epilepsy, and died in March, 1893. The immediate cause of her death is not shown. There was also evidence tending to prove that some time between the years 1883 and 1886 she signed and delivered to the plaintiff an undated check drawn by her in his favor on the German Savings and Loan Society for the sum of nineteen thousand eight hundred and seven dollars and twenty-four cents, with interest, and to be charged to her account as a depositor with that bank. The pass-book representing the deposits so drawn against was not delivered to plaintiff, and under the rules ot the said defendant bank, which were printed in the said pass-book, deposits entered therein could only be [147]withdrawn by an order accompanying the pass-book. The plaintiff was the only witness examined in relation to the making of the check, and he testified that at the time it was signed and delivered his wife was not confined to her bed, and was well; and further said: “ The check was given to me in consideration of love and affection. That was the reason for getting it. That was the only consideration; it was the understanding between me and my wife, at the time this check was signed, that I would not use the check or present it until after her death, and nothing was to be done with it until after my wife died. I was not to touch any thing in that book of that money until after my wife’s death.” The check was not presented to the defendant bank until some time after the death of plaintiff's wife.