Rosebrock v. San Diego Trust & Savings Bank

HAINES, J., pro tem. Hermann Rosebrock died on November 21, 1932, and was at that time in his late seventies. [77]His widow, the plaintiff and appellant, is of approximately the same age 'and had been decedent’s wife fifteen years. Bosebroek’s will was admitted to probate and defendant and respondent San Diego Trust & Savings Bank was appointed his executor. Thereupon appellant presented to it her claim against his estate based on a writing in decedent’s hand found among- his personal effects as follows: “Due Mary my wif $1,373.56. H. H. Bosebrock.”

The claim was rejected by the respondent and action brought upon it and upon the trial the case was submitted upon a stipulation which is, in substance, that the facts above recited are undisputed and‘that “the date of the occurrence of the obligation is unknown”. No other evidence was offered of the origin or status of the obligation mentioned in the above-quoted writing. Thereupon the trial court gave judgment against the claimant. The judgment must, in our opinion, be sustained. Appellant labors, of course, under the handicap of being barred from testifying by the provisions of section 1880, subdivision 3, of the Code of Civil Procedure, but that circumstance affords her the right to rely upon no presumptions to which she would not otherwise be entitled. It is all very true, as argued for appellant, that the relations between a husband and wife are highly confidential and, as stated in McKay v. McKay, 184 Cal. 742, 746 [195 Pac. 385, 386], are “controlled by the rule applicable to transactions between trustees and beneficiaries” and that it is “the settled rule that the fact of the receipt by the husband of his wife’s money presumptively makes him her debtor and imposes upon him the legal duty of returning it to her”. The writing here under discussion is, moreover, incapable of any other construction than that the wife’s right to receive from her husband the $1373.56 there mentioned, for whatever reason the same may have been owed to her, was her separate property, and under section 1963, subdivision 32, of the Code of Civil Procedure there is a disputable presumption that “a thing once proved to exist continues as long as is usual with things of that nature”. We are of the opinion, however, that the circumstance that the writing on which appellant relies and must rely to establish her case was not produced from her own possession but found among her husband’s effects was enough to justify the trial court in [78]