Nelson v. San Francisco Bank

STURTEVANT, J. In an action to recover a judgment against the estate of a decedent for money the trial court made findings in favor of the plaintiff and from that judgment the executor of the estate of the decedent has appealed.

In his complaint the plaintiff alleged that the decedent died testate February 21, 1937, that The San Francisco Bank was appointed executor of his estate on the 17th day of March, 1937, that it qualified and ever since has continued to act as such executor. It was further alleged that the plaintiff is a younger brother of the decedent. Continuing the plaintiff alleged as follows: “That at all times herein mentioned, plaintiff placed full faith and credit and confidence in his older brother, said decedent, and never made demand upon him for accounting of the money as hereinafter set forth. That at no time did plaintiff’s said older brother ever renounce, repudiate or leave [sic] plaintiff to believe, either by word, act or deed, that the trust as hereinafter set forth did not continue, with plaintiff the beneficiary thereof. That for a long period of time, to wit: ever since the year 1912 until the 21st day of February, 1937, decedent Henry and plaintiff Harry Nelson, engaged in various and sundry enterprises, that at no time was there ever a separation of the proceeds or a division of the profits of the said enterprises; that the said proceeds, at all times, with the full knowledge and acquiescence of plaintiff were placed in the name of said decedent; that at all times it was understood and expressed by and between plaintiff and decedent that the proceeds belonged to the [sic] both of said brothers plaintiff and decedent, to the exclusion of neither; that decedent at no time laid claim to the proceeds to thé exclusion of plaintiff; that decedent at all times admitted plaintiff to be the owner of one-half of the said proceeds. That the proceeds above mentioned are now in the hands of defendant San Francisco Bank, and plaintiff is informed and believes and therefore alleges the fact to be that the said proceeds amount to the sum of [834]Fifteen Thousand Nine Hundred Forty-nine and 03/100 Dollars. ’ ’

In its answer the defendant denied plaintiff’s allegations and alleged that prior to the commencement of this action the plaintiff presented no claim of any kind or nature against the estate of said decedent. The trial court found all of said affirmative allegations to be true.

The defendant contends there was no evidence that the plaintiff had a property interest in the said “proceeds”. Nor is there any evidence that said “proceeds”, or any part thereof, are in the possession of the defendant.