Cauhape v. Security Savings Bank

APPEAL from an order of tbe Superior Court of tbe City and County of San Francisco, granting a new trial. William T. Wallace, Judge.

Tbe action was brought by Mary Canbape, formerly Mary Pond, to recover a sum of three thousand dollars alleged to have been had and received by tbe Security Savings Bank to tbe use of tbe plaintiff, and to have it determined that an adverse claim to that sum made by tbe executors of the estate of Cora L. Floyd, deceased, to said moneys, was invalid. Tbe evidence showed that tbe father of Cora L. Floyd bad willed two thousand dollars to Mary Pond, and shortly before his death told his daughter Cora, who was the residuary legatee of his estate, in the presence of an executor of his will, that he had left a sum in his will to Mary Pond “for her faithful services,” and he wished Cora to give Mary Pond, on his death, five thousand dollars, and he wished the executor to be a witness to this. The two thousand dollars was paid over according to the terms of the will; and Cora L. Floyd deposited a further sum of three thousand dollars in the Security Savings Bank on term deposit account, in her own name, and gave the bank a written direction signed by her, requesting it to “please pay to Mary Pond, or order, the dividends on my term deposit account for the sum of three thousand dollars, No. 1356, until further notice.” Cora L. Floyd died, without revoking the order, or giving any further notice or direction to the bank. After making the deposit, she stated as a reason why she had not paid over the principal, that Mary Pond had lost the money given her under the will, or that her husband had spent it, “and that she did not intend to give her any more, so she could get hold of it, for fear that she or her husband would lose that also, but that she had had it deposited in the Security Savings Bank for her, so she could have the income, but could not get away with the principal, and when she grew older or had a child, she might have something to depend upon,” and “that she had kept a sort of nest egg for this woman 'who had been very good to her father.” From the evidence, the court found in favor of plaintiff’s right to the three thousand dollars, and gave judgment therefor. Defendant moved for a new trial, assigning the insufficiency of the evidence to justify the decision in various particulars, and also errors of law occurring at the trial, and excepted to by the defendant. The court granted the motion for a new trial, and the plaintiff appealed from the order.

There is no serious question of fact in the case; and the order granting a new trial was the result apparently of a change in the view first taken by the trial court of the law bearing upon the facts. A trust in personal property in favor of the plaintiff was established by the evidence. Such a trust may rest in parol. (Civ. Code, sec. 2221; Silveyv. Flodgdon, 52 Cal. 363; Heilman v. McWilliams, 70 Cal. 449; Doran v. Doran, 99 Cal. 311; Curdy v. Berton, 79 Cal. 423; 12 Am. St. Rep. 157; Williams v. Vreeland, 32 N. J. Eq. 135; Williams v. Fitch, 18 N. Y. 546; Roche v. George, 93 Ky. 609; Chamberlain v. Chamberlain, Freem. Ch. 34; Strict-landv. Aldridge, 9 Ad. & E. 516; 27 Am. & Eng. Ency. of Law, 54, 83.) There was no claim to be presented against the estate of Cora L. Floyd. The trust fund was a specific one, which had not reached that estate, and was no part of it. (Roach ¶. Caraffa, 85 Cal. 442; McGrath v. Carroll, 110 Cal. 82.)