*1 Dist., May No. 12745. First Div. One. [Civ. 1946.] BLISS, Appellant, v. CHAS. A. IRENE MARTIN, Respondent. Joseph Appellant. C. Prior for Respondent. Pierre A. Fontaine and J. Leonard Rose for WARD, appellant J. This isan action wherein seeks respondent, trustee, funds, recover from as constructive certain Coffin, originally property deceased, placed of Lulu H. Coffin, formerly Montgomery, said H. Lulu H. Lulu tenancy appeal presented with Bliss. plaintiff, Chas. A. exceptions stipulation of a bill of the form with to the evidence, therein, effect orders, etc., minute contained are true and correct. following: exceptions
The bill “Plaintiff contains the duly action; sworn and testified that he in said was the *2 attorney law, that he was an at and had been such for over forty years; Montgomery he had Lulu known one H. during time, all of that attorneys and had acted as one of her from 1911 death, her September 8th, until on and relationship confidential during existed between them most time; plaintiff of said residing Sacramento, California, at and at Oakland; she that said Montgomery Lulu H. at various times informed plaintiff that for services rendered and to be by plaintiff rendered joint tenancy she desired to create accounts between herself and and did certain joint tenancy bank by accounts be established to the execution by persons both of said agreements, of written and the deposit of moneys in bank in said accounts.
“That July 17, 1926 Montgomery, said Lulu H. also known as L. Brown, H. possessed owned and herself alone the name Brown, of L. H. savings account 92674 in No. Central Bank of Oakland, and which said account 92674 No. was created opened in said Central Bank in alone herself under the name of L. August H. Brown on 1921 with initial $7243.00; of savings that the balance in said ” account No. July 17,1926 92674 on $14,563.45. was the of sum The account accordance system with a new local bank changed and July 17, 1926, transferred on No. to account 42,950. It Coffin, should be noted that Lulu H. in the real business, estate years over a of opened savings number accounts with different and friends relatives under various assumed names. by names assumed tenants generally bore some resemblance to the true names of the parties. procedure Whether this was for tax other business or purposes is of consequence ease, in the outcome of this except tracing various accounts. Plaintiff that Lulu knew Coffin H. used various names as three other accounts were opened with him Montgomery, under the names of Lulu H. L. H. Brown and Hannah Brown. These accounts likewise provided money might by be party withdrawn either “original ownership.” without reference to Other accounts other plaintiff. banks were with Some the accounts 502 Coffin, prior out and some death of H.
were closed Lulu by subsequently paid appellant banks Bliss. were ‘‘ exceptions That June 1927 said relates: The bill changed single 42950 Savings Account No. from a name of L. H. Brown to an account the names in said joint tenancy. plain- or A. L. H. Brown Chas. Bliss That signa- separate No. consists of two and distinct tiff’s Exhibit affecting said Account No. 92674 transferred ture cards July 17, Savings Ac- Bank on to said new said Central Deposit affecting new Agreement said count No. signed Savings Account June No. dated de- A. Bliss. ...” by said H. Brown said Chas. L. moneys any time posit agreement provided: “All or now Savings us, us or either Bank deposited with Central Oakland, account, are and shall credit the above following upon the deposited by be so us received namely; that amount repayment, terms and conditions paid by all Central thereof and dividends thereon shall us, Oakland, Savings Bank of us or either or assigns of us, executors, or administrators or survivor such survivors; upon the order of written *3 original payment; so and reference entitled without ’’ moneys ownership deposited. May 27, 1929 “That on exceptions bill of continues: Montgomery, Brown, as H. said L. also L. without H. known plaintiff, or from said consent withdrew said thereby $17,714.94 Savings 42950 sum of and Account No. said No. 42950. That at no time did closed said Account moneys any or plaintiff deposit or withdraw contribute changed by said from No. 92674 said Account which was 42950, Bank No. nor July 17, Central on 1926 to said Account deposit did or any said at time or contribute to with- moneys 42950; May draw on any from said Account No. possessed a and Montgomery 1929 said Lulu H. owned joint Bank savings Account No. 31104 said Central herself, Frances Montgomery, name of H. or Fannie Lulu Alpi, sister, 31104 was created her and which Account No. said in the opened by Montgomery Lulu H. said bank said with deposit 1928 initial manner aforesaid on October with an Montgomery, May $50.18 and that 1929 said H. on- Lulu deposited in said plaintiff, without or consent of $17,714.94 which Savings Account No. 31104 the said sum of Savings May 27,1929 she Account had withdrawn said on
503 No. That faith and said had full confidence Montgomery inquired Lulu H. and never at the Central said Bank if Montgomery said Lulu H. ascertain had withdrawn any although plain- of said funds from said Account No. tiff inquired at all times could said have into and examined Montgomery Account No. 42950 to ascertain if said Lulu H. had ...” withdrawn funds therefrom. joint
Lulu H. persons Coffin bank accounts with other plaintiff. than appear Some of the names Frances as Laura Dunnigan, Alpi Alpi. Laura Frances Fannie The accounts were by closed out Lulu she H. Coffin under name whatever used. exceptions
The hill of sets at further forth “That the time of the death of said Montgomery, Lulu Sep- H. on to-wit: tember 8,1937, Montgomery said possessed Lulu H. owned and joint savings account No. with said Bank Central under name of Jean Watts or Irene Martin, defendant herein, opened Account No. 78410 was created and Montgomery said Lulu H. said bank in with the manner afore- said July deposit $5000.00, with an initial September 8, balance said No. 78410 1937 was $8225.74.” Similar accounts with existed time the death of Lulu H. Coffinwith the tenants listed as “Fannie A. Miller,” Brown or Jennie “Lulu B. Anderson Ruth Rogers,” “Lulu A. Anderson or Ruth Rogers,” Miller,” “Jean Watts or Jennie A. “Fannie Brown or Ruth Miller.”
Standing in the names of decedent and defendant deposit Brown or Fannie A. Ruth was a box Miller safe at the Bank. exceptions Central The bill “That on states: September 16, 1937 said re- safe box No. 13726 at the quest plaintiff, aforesaid, said its con- tents Cher, deputy seen John R. Alameda treasurer of said plaintiff, County and said that at that testified time, September 16, to-wit: learned that said first Account 42950 had Mont- No. been closed said Lulu H. gomery. ‘‘ September 16, among there contents That on *4 deposit 13726, said pass said safe box the bank book of No. savings 92674, changed by later Central Account No. said 42950, pass Bank and which bank to said Account No. said H. said Lulu Mont- book showed the withdrawal therefrom May 27, $17,714.94 1929 sum of and which gomery on of said 504 there, September was then and pass book to-wit: on
said 1937, 16, plaintiff could have been said seen and examined presence Deputy of said John R. ...” in the Treasurer Ober. added.) (Emphasis exceptions bill then lists pass material to this case that were books as documents various time. by appellant and have been examined that could seen exceptions Finally, prior the bill of forth: “That sets of a 1940, signing other June 13, 27, March than his on joint tenancy with Lulu Brown as card said H. tenant any 42950, any plaintiff did not assert in Account No. claim 42950, changed savings 92674, Accounts Nos. later of said 58979, 31104, 78410, 38768, any 3519 or 3520 or to the funds moneys them. or contained said accounts or either of plaintiff deposit no time said or contribute
“That at did moneys 31104, any from or to or said Accounts Nos. withdraw 78410, 58979, 38768, 3519 or or them. agreement
“That and of said conduct re- executor, said as such executor treated and 38768, 78410, garded 58979, Accounts Nos. 3519 and said moneys and funds therein contained as the property and the permitted upon and his sanc- of said defendant said defendant executor, withdraw, tion, approval direction as such use moneys enjoy and funds from said Nos. all Accounts said as such 3519 and compliance and in executor made demand said defendant pay her State with said said did share demand moneys con- Tax Tax and Federal Estate on Inheritance savings Accounts Nos. tained said ’’ plaintiff testi- (Emphasis added.) 3519 and It is true savings cursory examination fied that he made box opened. at the safe account books time the September 1937, that 16; Plaintiff testified he observed showing all funds the book No. Account indicated May 27, 1929. therein been withdrawn on foregoing respect plaintiff’s On the facts with basis rights in the against names of decedent the accounts relationship found, not defendant the court confidential during period parties appel- existed but that between the attorney with lant “his relation acted as Mrs. Coffin’s May “That her was confidential.” The court also found Brown, 27,1929 Montgomery, known as H. Lulu H. L. said also plaintiff, without consent withdrew $17,714.94 savings said 42950 the sum account No. 42950; thereby No. said account closed *5 ‘1 or plaintiff deposit did or That at no time said contribute moneys to said or from account No. 92674 which withdraw July changed bank by said to said account was findings No. 42950 as aforesaid.” The then trace the funds existing in 1926 other at the time of Mrs. removed to accounts death the names defendant and decedent. With Coffin’s of repetition as particular out herein to the accounts the court number, designated amount, date, the specifically accounts etc., “pass found each book then and that instance the was there, September 16, and to-wit: on 1937 seen and could have findings plaintiff.” been The examined then relate said respective that as executor the delivered books to permitted defendant the the and to withdraw respective balances and close the accounts. The also court “plaintiff found that since June have the means did original of and notice” of account the condition of the deposits up the to the date withdrawals closed, September “on that all of times thereafter said did have the means savings and notice of said accounts ... [in names of defendant and and of the of condition decedent] said moneys accounts and each of them and of the contained in said accounts each of them.” court, as a law, conclusion of that found guilty of laches and that provisions the action is barred Procedure, subdivision 4 of section 338 of Civil Code pleaded by If provisions defendant. of subdivi may sion 4 invoked, of section 338 be subject of laches need not be considered. provides The subdivision of the section that an action ground for relief fraud mistake must 1‘ provides: be commenced within years, three and further such case not to be deemed have accrued discovery by until aggrieved party, the facts con ’’ stituting the fraud or mistake. Appellant theory examination, has evolved which, upon quite appears Briefly, to be involved. is that the statute operate limitations could not appellant commence until gained knowledge of facts from which he could trace dis- position of the funds to respondent. Appellant then sets date of October 14, appointment the date his executor, as the when he date was able trace funds. appellant’s theory seems appointment that it was Ms gave legal right him executor to check decedent’s bank under names Defendant and decedent fictitious accounts. pass All right deposit box. the bank safety owned complete history documentary form, giving books on transactions, appellant to examine was available to various deny Appellant box. did not when safe thoroughly stand that he could have examined on the witness position His his September 16, accounts on cursory. suggestion appellant examination There against acted respondent take action while he did not desire to *6 stipulated exceptions a in the of fact bill as executor. It was acting as the decedent’s “that still executor of was estate, 1940.” action was filed on October when this effect appeal in to the approached Each side the statements problem to be is did discover that the decided when joint tenancy money, deposited the that Lulu fact the Bliss, H. Coffinunder names of L. Brown and Chas. A. the H. deposited and in the vari- had been withdrawn Mrs. Coffin Appellant that is ous here asserts accounts considered. decided, discovery question the but that the date sole upon ap- is October the date Respondent ac- pointed the executor of Mrs. Coffin’s estate. that find- cepts challenge proceeds the to demonstrate the ing appellant examined the saw and could have various testimony supported by appellant bank is that he books the 42,950 and actually examined the numbered that such had been with- bank hook “all funds therein showed that drawn.” suffi
“Every person who has actual notice circumstances particular a put prudent inquiry cient man as to fact in all fact, constructive notice itself cases has by prosecuting which, inquiry, might have learned such he “pleading (Civ. Code, §19.) duty fact.” until fraud was not discovered within proving” had prior filing complaint, to the of a years three put presumptive of facts sufficient to actual “no (Hobart Hobart inquiry” plaintiff. is on v. Estate him on 958].) Co., P.2d Whether a cer Cal.2d [159 alleged de of an tain circumstance within the duty it a of such party sufficient to make frauded by investigate question to be determined fact right had to con jury or the trial court. court his appellant lawyer fact that well aware sider the (Hobart legal rights of limitations v. Hobart under statute investigate. The trial duty to his Co., supra) Estate testimony appellant that before it the here court appellant September examined book was pass eight case, exhibit in this shows book, an The bank entire withdrawal last one which was entries, the presented than convincing could be evidence No more balance. gone “to arouse documentary evidence (Hobart v. Hobart person.” a reasonable suspicions of brief, 442.) closing appellant’s In supra, p. Co., Estate at cover- did look the book is made: “He following statement all funds had been 42,950 and saw account No. ing found that ease he could have equal With withdrawn.” Montgomery H. name of Lulu 31,104, in the account No. date the identical the same sister, deposited on her there was at 42,950. Such evidence No. from account amount withdrawn Hobart ease—that rule falls announced least within alleged be defrauded party if inquiry must be made prudent reasonably make a of facts which would “is aware supra, (Hobart Co., Hobart Estate v. person suspicious.” Co., 72 Bldg. Loan & Western p. 438; see, also, Scafidi hearing in Su- 260], petition Cal.App.2d 550 ease the fraud denied.) In the Hobart preme Court at time, it have been discovered nor could discovered one from time time. Hobart learned of the fraud one time. discovery been committed when Mrs. Here that a fraud had *7 immediately when the money Coffin made withdrew opened—the box entire fraud was discovered deposit safe entire account had just appellant found out the as soon as been withdrawn. of action arose suggested been that a new
It has originally transfer held each successive of with joint of tenancy account, and that such causes action shall original joint has tenant to have accrued until the be deemed Even knowledge to each transfer. means of relative successive Sep theory it is admitted that on assuming is correct this that had 1937, appellant here saw his account tember innumerable accounts that there were other been closed and prior to her death. had an interest decedent unjustified trial conclud said that the court was can not be make “knowledge facts sufficient to had of ing appellant that [i.e., of reasonably person suspicious fraud prudent (Hobart transfer the account with into defendant].” although 437.) here, supra, p. It is true that Co., Estate Hobart an earlier to discovery available of were the means of his examination court, prior trial to found date as not such that were box the circumstances the safe do so to inquire that his failure duty so appellant it However, during that time. negligent omission became a putting determination that the trial court’s not be said should was erroneous duty September him under a it that theory, appears where law, this a matter even under his that The determination bank books. the other saw by the evi supported that date is duty inquire started at having ac proclivities of decedent’s dence that he knew having many accounts names, her habit of counts in fictitious name had been joint account his money in the and that the acts theory fraudulent give of successive withdrawn. To determining this cause greater weight in the date June, require 338(4) section would discovered within actually that he selected as the date appellant 1939—the date had been transferred funds obtained the statute date from which respondent—be selected as the appellant that on October started to run. The admission to run would actually started 1937, the of limitations statute applica warrant facts this ease be worthless. The to run commences tion of the that the statute recent rule a reason make knowledge of facts sufficient after has one (Civ. Code, 19; ably suspicious fraud. prudent person § supra.) However, there Co., Hobart v. Hobart Estate go con compels this court nothing in the Hobart case which to means trary respect of the trial court with to the conclusions conclu where the suspicious circumstances susceptible to conflict on facts sion the trial court based ing inferences. finding of supporting the
In of all the circumstances view as a court, appellate court should not be said limita- a matter of fact the statute matter law or as September tions did not to run from commence judgment is affirmed. Knight, J., concurred. majority opinion I dissent. holds
PETERS, P. J. gained knowledge put sufficient to a reason of facts *8 duty investigate September 16, a able under 1937, complaint filed on and for that reason holds that twenty-five days period 11, 1940, filed after the October was 4, prescribed in subdivision of the of Civil section Code holding spite elapsed. Procedure had This is made running day fact that on the thus selected to start the plaintiff legal right statute of had no to the limitations possession of the bank books that his sole source of knowl were edge, legal right inquiry and had no to make at banks concerning question. plaintiff the bank accounts legal right possession legal to the of the books and had no right concerning inquiry to make at banks not accounts not, fact, his own until October and did ascertain the true facts until June of 1939. is at once obvious that the possible earliest date that run the statute could start to October complaint and that the filed on October days was filed three before the statute had run. The majority holding, my opinion, upon is based failure against realize that the cause action one here involved is trustee, against donee of a fraudulent and not one the fraudu lent required trustee. We not to determine in this case are when fraudulent, first learned that Mrs. Coffin was required learned, but are to ascertain when he first or should learned, upon put inquiry, have that he had a cause against defendant, action of the fraudulent donee That trustee. is the cause involved. here select To September 16, 1937, upon put as the date was first inquiry against might that he have a cause of action in holding running results that the statute was September 16, 1937, 14, 1937, period twenty- October eight days during legally in powerless vestigate, my also, opinion, disregards but the rules law Co., announced in Hobart Hobart Estate Cal.2d 958]. problem The solution of the here involved upon turns analysis facts, analysis careful of the a careful pleaded. majority exact nature of the cause action here opinion analyze states most of the pertinent facts but fails to legal or even to discuss the exact nature of the of action pleaded. here
Plaintiff an attorney practiced has pro- law and at his many years. During years fession for here involved he many years knew, friendly resided in Sacramento. For with, attorney Coffin,formerly and was Lulu Lulu Mrs. H. Montgomery, H. Brown, whose maiden name was Lulu H. who resided Oakland. He continued act as one Mrs. Coffin’s *9 attorneys September 8, until her death on 1937. He testified during relationship this a confidential existed period that them, and had informed him that at various times she between by him she services rendered and be rendered de- for joint tenancy bank her to create account between and sired On promise carried out this him. She June thereto, owned, under her date, prior some time she Brown, savings account name H. number maiden 42,950 Lulu 92,674) Bank (formerly account number in the Central On that date there was on in this of Oakland. account $16,370.86. changed that date account the sum of On (the an names of L. H. maiden name into account Brown Coffin) signature Bliss, plaintiff. A. The of Mrs. and Chas. relating card to this account dated June Agree- signed Deposit L. H. and Chas. A. Bliss. The Brown account, day, relating ment to this dated the same reads follows: “Deposit Account No. H. Brown or A. Bliss
“L. Chas. moneys or deposited by “All or time us either now at us, Savings Oakland, Bank of with Central the credit of account, deposited are and be so us the above shall following upon terms and received conditions of namely: repayment, thereof and all amount dividends Savings paid by Oakland, Bank thereon shall Central us, or us, executors, or or us either survivor of assigns survivors; or of such or administrators of any payment; so entitled to written order original ownership moneys reference to the without deposited. L. 27, 1927 H. Brown
June A. Chas. Bliss” Oakland, Cal. deposited in, to, no time contributed or from, Mrs. made certain this account. Coffin further withdrew by May 27, 1929, in this account so that there deposits date, $17,714.94 On balance. without Coffin all of plaintiff, Mrs. withdrew consent closed. At this time Mrs. in this account and it was Coffin bank, joint 31,104, same had another account No. her Montgomery and the name Fannie name Lulu H. then May 27, 1929, her On there was small Alpi, Frances sister. day in that account. On balance same account deposited Mrs. in the plaintiff Coffin with closed sister, $17,714.94, her the exact amount with- with plaintiff. testified account with drawn Mrs. did he ever prior time to the death of Coffin that at no concerning account, his for the inquiry at the make faith and confidence that at all times had full reason and had reason to distrust her or to believe that Mrs. Coffin account. her death she had closed their Until he had no actual had been his account closed. By July 3,1935, sister, 31,104, account with her No. $25,061.04. so that the balance was then On increased $17,385.25 that date Mrs. Coffin from that account withdrew July 6, $6,000. July and on withdrew additional On Coffin three Mrs. accounts with the Central *10 defendant, in Bank in her name and the name of each with $5,000. deposit initial of numbered These accounts were 58,979, 38,768. 78,410 78,410, As to No. Mrs. Coffin used name, a fictitious but defendant used her real to the name. As other accounts both two Mrs. Coffin and defendant used ficti- time September tious names. At the of Mrs. Coffin’s on death 78,410 8, $8,225.74; there was a balance No. No. of 58,979 $8,225.74; 38,768 $8,225.48. and in of No. of July 5, opened
On Bank with the Amer- of joint $3,000 names, ica two in defendant’s and her account^ 3,519 3,520. which accounts were numbered Mrs. Both Coffinand defendant fictitious used names as to these accounts. At the date Mrs. Coffin's death the balance each account $3,129.52. was subject
These five accounts are present matter of the action, being plaintiff wrong- theory that Mrs. Coffin money fully joint from their and that withdrew way found into its the five accounts in which de- surviving joint theory fendant was tenant. It is the plaintiff money may that if he can he trace hold the de- fendant constructive trustee. joint
Mrs. Coffin had certain other accounts with various involved, couple quite not persons other here and a of other plaintiff. small accounts with At the her death time of deposit she defendant a owned with safe box Central Bank. and defendant used fictitious names She securing By box. Mrs. died testate. this Coffin her will she plaintiff September 16, named the executor. On majority is the date selected as the date the statute run, yet plaintiff, limitations started to who had not been executor, requested county open treasurer appointed examining purpose for the its contents. deposit safe hox presence deputy in the of a opened hox that date The was Among things in plaintiff. other the box were treasurer books, including pass books for accounts a number of account), account), 31,104 (the 42,950 (plaintiff’s Alpi Nos. 78,410, 58,979, 38,768, 3,519 pass books numbered and the five (most fictitious) Mrs. 3,520, in the names of which were defendant, and other bank books for other accounts. Coffin plaintiff on seen this date. These bank books were date that first secured actual was this money had account No. that all the been withdrawn from He 42,950 in 1929. and that that account had been closed only a time box he testified that made not cursory knew, examination of the bank books because he executor, yet having appointed been that he was not entitled Moreover, what the obvious possession. to their he stated closed, although then his account had been that, fact he knew disposition he tell had been could then what made funds. estate on Oc- appointed executor of the appeal. 14, 1937, key
tober the second date involved de- box were On this date the contents of safe to him. This action commenced October livered key the third date here involved. being appointed that after executor testified began systematic in Oakland search all of the banks regardless belonging to
locate all bank accounts deceased February On may the fictitious names she have used. *11 asking Central Bank executor, as he addressed letter to the number, accounts, identifying by them that a full record of all deposit given copies him of their to him. The bank sent relating accounts, added records to these but and withdrawal through records, the impossible trace, the bank that it was first of 1939 he origin In June particular account. money in defendant’s accounts was became convinced that joint and he tenancy account money from his withdrawn in March of 1940. a formal defendant made demand mentioned. The that should be There is one other factor that estate, determined defendant plaintiff, as executor of the 58,979, 78,410, surviving joint accounts Nos. tenant of was the pass delivered the 38,768, 3,519 3,520, and as executor and Defendant February 10th, 9th 1938. and books to defendant on money. dispute There was some immediately withdrew on inheritance and federal estate taxes these over the state executor, Defendant, request plaintiff at the accounts. taxes, compromise in paid share June of her relating agreement approved by probate to such taxes was court. pointed majority opinion, trial in found,
The court out plaintiff’s that cause of action barred laches and 4, provisions 338, of section subdivision of the Code relationship that plaintiff’s Civil Procedure. It also found confidential; 27, Mrs. with Coffin was that ac- on June 42,950 changed count No. from Mrs. Coffin’sname to the joint plaintiff Coffin and tenancy; names Mrs. that knowledge May plaintiff, without or consent of Mrs. the money Coffin withdrew from this account and de- No. posited 31,104; July July it account that on 3rd and 6th, 1935, $23,385.25 Coffin Mrs. a total withdrew this knowledge account without or consent of plaintiff and opened up defendant; the five accounts plaintiff with aware of the existence of the Coffin-defendant ac- Coffin; until after the counts death of Mrs. that at all times plaintiff knowledge since June the means of and notice 42,950 of account No. deposits and of finding withdrawals in said account. same 31,104 and notice was made as to account No. since was opened May 27, Sep- The court then found that on tember deposit date box opened, the safe had the means of of the five notice Coffin-defendant accounts moneys ; and the contained them first asserted his claim to the accounts various 13, 1940; on March agreement and conduct plaintiff as of the executor Coffin treated and estate regarded the five Coffin-defendant accounts as the property defendant, permitted withdraw, use and enjoy the contained accounts; these the funds in the five Coffin-defendant accounts came from funds originally accruals deposited 42,950. No. findings, In accordance with these judgment was entered defendant. important to note that the trial court found that the
original Coffin-plaintiff tenancy. account was form agreement (Wallace supports finding.
514
807]; see, also, Estate
Cal.App.2d 669
P.2d
Riley, 23
[74
of
1055].)
Gaines, Cal.2d
amended;
(Stats.
p.
the Bank Act
as
15a of
Section
p. 210)
part:
in
Leering’s
Laws,
provides
Act
Gen.
by any person
any
in
deposit
shall he made
“When
in
names of
de-
minor or adult
such
persons
or
whether
in
person
persons,
and another
or
positor
depositors
or
of
or survivors
paid
any
to
them or the survivor
form to be
any
any
made
them,
deposit and
additions thereto
of
such
making thereof,
persons
prop-
after the
shall become
such
together
joint tenants,
erty
persons
deposit
of
and the
such
thereon,
or interest
shall
held for the
dividends
be
with all
may
any of them
persons
paid
use of such
be
to
exclusive
or
or
after the
during their lifetime
to
survivor
survivors
them,
payment
more
and such
death of one or
persons to
receipt
acquittance
or
whom such
or
dis-
payment is made shall be
release and
valid
sufficient
charge
payments
bank for
made on account
such
to such
all
writing
receipt
deposit prior
such bank of notice
deposit in
thereof.
pay
accordance with the terms
such
shall, in
making
form
the absence
such
any
evidence, in
influence,
of fraud or undue
be conclusive
surviving
proceeding
or
which either
bank or the
such
may
party,
or
be
of the intention
depositor
depositors
deposit and the additions
depositors
to vest title to such
in such survivor or survivors.”
thereto
important
dealing
There have been several
cases
with
joint tenancy ac-
presumptions that exist in connection with
form
joint tenancy
account is created
counts. When
Act,
pre-
prescribed by section 15a of the Bank
a conclusive
influence,
arises, in
or
sumption
the absence
fraud
undue
right
any
title and
funds
favor
the survivor
to his
remaining
other
in the
the death
depositor
depositor. This
so unless after the death of the
original
fund,
proof
be
who was the
owner of the
there shall
his
and con-
that the account was
without
However,
merely
sent, express
implied.
it is
a rebuttable
depositors during their
presumption between the
contest
joint lives,
after the death
either as
and also is rebuttable
In
moneys previously
withdrawn from such account.
these
instances,
may
tenancy
proof
latter
received that the
two
something
created was
truth
different
the character
tenancy
legal
(Wallace
presumption.
defined
*13
800, 807];
Cal.App.2d 654 and 669
P.2d
Mos-
Riley,
v.
23
[74
Marrow,
pp.
251 N.T. 380
396-397
N.E.
kowitz v.
[167
870],
Moskowitz, 255
219 at
66
and Marrow v.
N.T.
A.L.R.
dissenting
p.
460],
majority
221
N.E.
See
[174
409].)
Keenm,
293
573
opinions Walsh v.
N.T.
N.E.2d
[59
state, contrary
in some
is
law of this
to the rule
also
joint
by
states,
money
if
is
account
withdrawn
other,
one
depositor
property
without
the consent of
acquired
money withdrawn,
another
by
so
or
account
money traced,
property
which the
is
will retain its character as
joint tenancy
original fund,
held in
has
like the
there
unless
change
by
agreement
been a
in the character
between
some
parties.
many
This has
been
law of California for
years.
(Estate
;
169
Harris,
Cal. 725
P.
Estate
967]
[147
Harris,
649
;
Riley,
9 Cal.2d
P.2d
23
Wallace v.
[72
873]
Cal.App.2d 669,
807]; Young
677
P.2d
126
Young,
v.
[74
580];
Cal.App. 306
McCoin, Cal.App.2d
P.2d
9
Estate
[14
480
114]; Lagar
P.2d
v. Erickson,
Cal.App.2d
13
365
[50
[56
P.2d
In
1287];
Kessler,
re
217
117];
32
P.2d
Cal.
Chamber
[17
lain
2
Chamberlain, Cal.App.2d
v.
684
P.2d 790]; Wheeland
[38
Rodgers,
816];
v.
How do these rules to this case ? Before can prove original recover he must that the him account between joint account, tenancy Mrs. Coffin was a and he must be that account into the five accounts the funds from trace Inasmuch as the Mrs. Coffin defendant. tween during de the lives here involved was withdrawn discussed, already presumption under the rules positors, one form of the that the account was arising from the admis joint tenancy rebuttable, and evidence would be joint tenancy not a prove that that account was true sible to agreed that it Mrs. Coffin and account, but that agreement That different character and effect. have a should course, and conduct as well as can, be shown actions that, regardless of whether contends words. defendant is barred guilty laches whether plaintiff was limitations, presumption that the statute of law, tenancy, a matter of was' a true account was relies on certain facts In this connection rebutted. necessary forth that undoubt to here set and circumstanes *14 the account between support an inference edly would joint tenancy But plaintiff was not a true account. Coffinand that the account was not so find. found the trial court did winning in party joint tenancy account. Defendant the a finding legal attack that position in below is court involved Moreover, presumption rebuttable appeal. on this Rigby, 34 finding. said in Lieber v. supports the As 49], answering in the identical Cal.App.2d 582, 584 P.2d [94 Supreme of our Court least since the decision argument: “At 529], P. Co., Cal. in v. Southern Pac. [299 Smellie presump rebuttable to the that a courts are committed rule our standing support alone will species a of evidence which tion is contradictory produced by the other finding against evidence one the account was finding of the trial court that party. The joint sufficiently supported pre tenancy in is therefore husband voluntary act of the deceased sumption based on the though appellants’ evidence creating account, even might opposite presumption compel the absence of the ’’ conclusion. tracing legal to the of the funds same situation exists as names joint tenancy accounts in the of Coffin into the five way finding support either would defendant. The evidence wrong- money found that on that issue. The trial court itself Coffin-plaintiff account found fully from the withdrawn appeal concerned it far as this into these five accounts. So finding supported that defendant must be held that such it. attack cannot general having the facts and
Now, applicable stated law any if let us see there is appeal, to this reasonable basis holding majority opinion that in the the cause of action is by section subdivision the Code of Pro- barred Civil properly cedure. can be done nature Before particularly cause of action involved this case must be more analyzed.
When Mrs. Coffinwithdrew the
entire balance
the Coffin-
her
act of withdrawal constituted a fraud
upon plaintiff.
(In McCarthy’s Estate,
re
hands, plaintiff judgment can recover against *15 although may the defendant spent have dissipated or otherwise money. general the rule is stated as in 2 follows Scott Trusts, page 1617, section 292.2: “If a trustee in breach of gives money trust trust donee, to a the fact that the donee spends money the before ordinarily he has the notice of is trust no defense. It.is sufficient if the beneficiaries of trust the money show that paid was in breach of and that no trust given consideration shown, for If it. this is the donee is upon called account which amount he receives. The donee, liability, to be relieved of must he had show before changed notice of the breach of position trust he so that it his he him The mere inequitable to hold liable. fact would be is not a defense where spent money defense. is no has ordinary spent by the money donee on appears expendi- If, however, extraordinary he made living expenses. not if he had which would have made tures with may change of money, posi- well not received the be inequitable to hold him liable.” This is tion that it would (See Trusts, of the Restatement. Rest. likewise the rule 292, particularly J.) comment § run on of limitations start Now when does statute regard general rule, in to con- such a of action? The begins run trusts, period of limitations structive wrongful doing act the trust created, being necessary to repudiation set the statute (25 135, p. 274.) However, motion. is an there Cal.Jur. § rule, Jurisprudence, exception to this stated in California circumstances, currency of page 275, “In some as follows: wrongful act commences, not at the time statute created, subsequent at a date which the trust was but cognizant when the became of the facts. If trustee wrongful running conduct, concealed of the statute his ’’ postponed. gave any The evidence not that the defendant does show transfer of the consideration to Mrs. Coffin for the funds standing in question tenancy several accounts to the clear, therefore, that this is a case their names. It is wherein exception apply. Gorham, should said in Airola As was stranger supra, page property 46: “The transfer trust to a beneficiary’s rights being conveyance fraud of the should [referring same rule principle follow the to the above- gift exception].....To mentioned hold that where secretly an innocent statute at once made donee the would might barring commence to run well result the cause discovery by party. are before its the defrauded We ” clear, therefore, is not . . . satisfied that this the law. It is limitations in the instant the statute of case did start until knew or have Mrs. run should known of depositing act of the funds in Coffin’s fraudulent the Coffin- defendant accounts. found that
The trial court the means knowl- edge deposits 1927 of since June of and withdrawals his account, finding and the same is made as to the Coffin- May Alpi But when it comes to *16 plaintiff involved, that here the court finds the five accounts knowledge concerning means of these accounts did not have the box 16, 1937, September when safe was until quite opened. findings these im- The differences between portant, overemphasized. and cannot This not against or her We are not Mrs. estate. here interested Coffin knowing started run in her favor. We when statute required are here ascertain when statute started to run against against defendant, on his of action plaintiff passing, donee fraudulent In be noted trustee. it should inquire plaintiff legal right that it that is obvious concerning joint account, and, so, at bank his had he done he would have discovered Mrs. Coffin’sfraudulent act with- drawing May quite 27,1929. the funds is therefore clear knowledge has had the means of that fraudu- running lent since 1929. But to act start the statute even against only her the must means not have had the knowledge, duty inquire. there must but be a These two persons lawyer. friends. were Plaintiff Mrs. He Coffin’s had no reason believe that He she dishonest. was not required peril at his to assume trusted and client his friend rogue. was a There can at all be no doubt duty until, under to make inquiry earliest, the death Mrs. Coffin. Now what did he discover on September 1937? He discovered that his trusted friend client had guilty been aof fraud and had improperly that she closed out their He reasonably put account. also deposited withdrawn had been account of sister, Mrs. Coffin her that that par- account had been tially in July closed out of 1935. were a There lot of other deposit box, books the safe but can it be held that he placed was then duty inquiry, under a he had knowledge, may means that some these books have in- cluded originally from withdrawn his account? Most of these accounts were in fictitious names. The amounts Alpi withdrawn from the not account were identical with the plaintiff’s account, balance in deposits nor were the made in defendant’s accounts identical amount with the withdrawals Alpi account. of withdrawal—July The dates 3rd and 6th—and dates of deposits—July the new 3rd and confusing. 5th—are most Not were the various names Coffin fictitious, used Mrs. but the various names used fictitious. What "of plain- defendant were means did possess right pass tiff ? He had then no lawful to the various books, having yet appointed been He had no executor. right inquiry lawful to make at the banks until October on September 1937. How can it be held that he had *17 knowledge either the means of or that he then under a duty inquiry so far as defendant is concerned ? The answer plaintiff until is obvious. was not when October appointed qualified executor, put on that he was inquiry these concerning accounts. applicable
The law to a has been so such factual situation recently Supreme that it stated Court would be need repetition quote less to do more than from the most recent subject. opinion of In that court this Hobart v. Hobart 437) 26Co., 958], (p. Estate 412 it is Cal.2d stated : [159 requirements that in “Defendants assert addition to these plaintiff diligent must inquiry show that he made a to discover defrauded, they argue whether or not he had been plaintiff prove inquiry failed to that earlier not have would falsity alleged representations. revealed the of the It is not every case, however, person years that a is barred after three pursue discovering possible failure to available means only fraud. The statute commencesto run after one has knowl edge reasonably prudent of facts to make a person sufficient fraud, suspicious putting inquiry. him on 19 thus Section provides: ‘Every Civil Code who has actual put prudent upon notice of circumstances to man a sufficient fact, inquiry particular as to a has notice constructive which, by prosecuting inquiry, fact itself all cases added.) might (Italics he have learned such fact.’ Under Bingham, section it was held 123 163 Tarke Cal. [55 759], P. not barred subdivision Procedure, nothing section 338 of the Code of Civil since had suspicion, put upon inquiry.’ excite his to him occurred ‘to (123 166.) duty p. Cal. at The court said: ‘Where no is im posed by upon person inquiry, make law and where under prudent upon the circumstances “a man” would not put knowledge open fact inquiry, the mere that means of are not them, he has not availed does plaintiff, himself of debar him from relief when thereafter he shall make actual discovery. inquiry The circumstances must be such that the negligent it duty, becomes a to maize omis failure added.) (Italics Many other adopted sion.’ decisions have [Citing In it many this view. cases has been said cases.] knowledge equivalent knowledge. [Citing means are however, true, only where duty This is there is a. cases.] inquire, as where is aware of facts which make would In reasonably prudent person suspicious. Lady Wash- ington case, (113 p. 809]) the court said Cal. at P. [45 ‘ equivalent that as knowledge, the means are appears had notice or if information of circumstances which would put inquiry which, him an if followed, knowledge, pre- would lead to or that the facts weré sumptively knowledge, within his will be he have deemed to added.) had (Italics actual of these facts.’ ‘‘The reason for the rule is well stated Victor Oil Co. v. Drum, (184 supra p. 243]) Cal. at P. : will ‘The courts lightly deny seize some small circumstance to relief to a party plainly shown to actually have been defrauded against those who him on the ground, forsooth, defrauded he did not discover the fact that been cheated soon might as he have done. It is party where the defrauded plainly should have discovered the except fraud for his own *18 charged inexcusable inattention that he will be with a dis- ’ covery in knowledge advance of actual his part. on It follows plaintiff not is barred discovery because the means of were available at an earlier provided date he has shown that he was not put by any on inquiry circumstances to known him or his agents any time prior to commencement the three- year period ending June, 1941.” definitely
This ease has determined that where there is no duty investigate to not statute does start to run until the plaintiff notice or has of some fact incident or suspicions sufficient to person—that arouse the of a reasonable is, knowledge of some fact reasonably sufficient a to make prudent suspicious person of fraud. clearly is violative the rules announced this to case plaintiff
even suggest that had means of or was duty a inquiry, during under to make period a time that legally impotent to pursue inquiry. For these reasons opinion I am of the did not statute start until to run 14, 1937, complaint October and that the filed as it was on filed October before pleaded the cause of action was barred. majority opinion
Inasmuch as holds that the cause by action barred quite of limitations properly statute it ground does not discuss the court’s alternative trial 522 harreó, find
holding,
by laches.
namely,
holding
findings
predicated
or less
ing
is more
of laches
Moreover,
by the statute of limitations.
is barred
the cause
in her amended answer
simply pleaded laches
defendant
setting
forth
facts
as a conclusion without
complaint
not
Certainly the
does
is based.
the conclusion
by
rule
that the cause is barred
laches. The
on its face
disclose
applies
is,
specific
statute
limitations
that when
delay
case,
for a
action,
period
mere
alone
does
will not
the statute
bar the
provided
less than that
action,
Education,
Defendant’s finding lenged should have commenced died, Mrs. Coffin and that suffered material action before she plaintiff’s prior prejudice by to commence failure already argument pointed is unsound. As that date. The discussing limitations, the facts of out statute of under duty inquire as to under this case lapse during Mrs. lifetime. The status of the accounts Coffin’s of time death is I up to her therefore immaterial. As view 14,1937. facts, cause of action did not accrue until October frequently cir- it has been stated it is material While claim determining whether laches exist that the cumstance was made until after the death of who could have explained (see the transaction cases collected Cal.Jur. § *19 p. 532) circumstance, involved, under the facts such here duty investigate death, prior where there was support finding duty does not of laches. The act inquire exist of action must before cause accrues. The true Soc., L. Maguire rule is & set forth Hibernia S. Cal.2d 1062], “Where, A.L.R. 673,151 as follows: years for an action is example, many commenced its ac- after crual, evidence, pre- the death of witnesses or destruction actual, may prejudice as sinned well the defendant and ’’ justify denial relief because staleness of the claim. The trial delivered court also found executor pass defendant, books to defendant allowed to secure against money, compromised state and federal tax claims forth. property. particular No facts are found or set equity prejudice This is an If based action. to defendant is barred, these facts so material those appear. facts But if must the financial loss of small, being equity possesses action, the trial court power recovery, plaintiff’s full against offset such loss if is found entitled to recover.
For I opinion these reasons am of the that the cause pleaded laches, is barred neither by limitations nor and that should be retried on its merits. Appellant’s petition hearing by Supreme Court July 15, Gibson,
was denied J., and Carter, J., C. voted hearing. for a May No. 3511. Fourth Dist.
[Civ. 1946.] ROBESKY, MAXINE YOUNG A. Respondent, v. DONALD
ROBESKY, Appellant.