Wheelock v. Godfrey

SEARLS, C. Almon Wheelock, executor of the last "will of Albert G. Wheelock, brought an action to set aside and declare null and void an assignment made by Albert G. Wheelock, deceased, to defendant Arabella Godfrey, upon the ground of the mental incapacity of said Wheelock to execute the same, and fraud on the part of said Godfrey in procuring the execution of such assignment, and also to recover from both the defendants the sum of money assigned. Albert G. Wheelock, plaintiff’s testator, according to the complaint, had on deposit [397]with the San Francisco Savings Union, an incorporated bank of savings, one of the defendants and the appellant herein, the sum of $7,045.89, for which he had a bank-book. On the first day of October, 1888, said Wheelock assigned his said demand and bank-book to the other defendant, Arabella D. Godfrey, the respondent herein, who thereupon procured the amount aforesaid to be transferred by the bank to her credit, and in evidence thereof the issue of a bank-book showing such credit to her. The bank defendant answered the complaint, and also filed a cross-complaint, in both of which it admitted the deposit by Wheelock of the $7,045.89, the issue of a bank or deposit book to him, wherein he was credited therefor, and avers the due assignment thereof to defendant Godfrey, and the issuance to her of a bank or deposit book, and a credit to her of the amount thereof on its books, etc. And in its further answer or cross-complaint it avers that the plaintiff and defendant Godfrey each claim said sum of money; that one of them is entitled thereto, with the dividends thereon, and that it has no means of knowing or ascertaining which of them is entitled thereto; except by the determination of the court in the premises; that it is willing to pay the same when the ownership is determined, and has no interest in the question except .to hold the money according to th’e terms of the deposit, and to pay it to the party entitled thereto. Defendant prays that plaintiff and defendant Godfrey be required to interplead, and that the court, by its judgment, determine which of them is the "owner and entitled to said money deposit and dividends thereon. No answer was filed to this so-called ‘‘ cross-complaint ’ ’ by either plaintiff or defendant Godfrey. The cause was tried by the court, written findings filed, and judgment entered as follows: (1) In favor of both of the defendants, as against the plaintiff; (2) that,■ as between the defendants, the sum of $7,045.89, which by the answer of the bank defendant is admitted to be held by it on deposit in the name and to the credit of defendant Godfrey, belongs to her, together with any and all dividends that have accrued thereon; and it was further decreed that she recover the same, and that she be at liberty to apply to the court for any further relief that may be necessary to ascertain the amount due her by the terms of this decree, and to enforce payment thereof. This decree was entered September 18, 1891. On the thirtieth