Plaintiff administrator brought this, action to recover the sum of one thousand dollars, which, it. was alleged, belonged to the estate of his intestate, and had been converted by the defendants to their own use. The adtion was tried without a jury, and the court granted a motion for a nonsuit, on the ground that the money sued for was not shown to have been the separate property of Ellen Denigan. From the judgment entered in favor of the de *393 fendants plaintiff appeals, and the only ground alleged for reversal is, that the court erred in granting the motion for a nonsuit.
The facts shown by the evidence material to this controversy are as follows, viz: Ellen Denigan was, prior to her marriage, Ellen McCabe. She and Francis Denigan (whose name was also pronounced Donegan or Dunnigan), intermarried on the nineteenth day of January, 1862, and they continued to be husband and wife to the time of her death, which occurred July 3, 1896. At the time of her marriage, she was the owner of two parcels of real estate in San Francisco—one on Bryant Street, conveyed to her in May, 1860, and one on Shipley Street, conveyed to her in September, 1861. By a deed executed August 13, 1884, she and her husband conveyed the Shipley-Street lot for two thousand dollars cash. On August 18, 1884, there was deposited with Father Maraschi, treasurer at St. Ignatius College, to the credit of “Frank or Ellen Dunigan,” the sum of eighteen hundred dоllars. No other deposit was ever made on this account, and on July 6, 1886, the balance of principal remaining—viz., seventeen hundred dollars—was withdrawn. On the same day, July 6, 1886, account No. 133,269 was opened by the Hibernia Savings and Loаn Society with “Frank Denigan or Ellen Denigan” by a credit of cash of seventeen hundred dollars.
On February 24, 1888, she conveyed the Bryant-Street land for a consideration of $6,750, which was paid her in cash, and on Monday, February 27, 1888, a depоsit of thirteen hundred dollars was made to the credit of said account. This account 133,269 continued to October 19, 1896, a little over three months after the death of Ellen Denigan, when it was closed, the balance at that date being $2,413.33. The only two deposits made to the credit of this account were the seventeen-hundred-dollar deposit of July 6, 1886, and the thirteen-hundred-dollar deposit of February 27, 1888, all the other credits being dividends of interest earned by these twо deposits. On the day this account was closed, with a payment by the bank of the balance of $2,413.33, October 19, 1896, account No. 212,145 was opened by the defendant bank with “Francis Denigan or James Denigan,” by a credit of cash, $2,413.33, the Frаncis Denigan therein mentioned being the
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surviving husband of said Ellen Denigan. The only other deposit to the credit of said account was one of two hundred and fifty dollars on July 9, 1897, the other credits being of interest dividends. On November 29, 1897, there was pаid by the bank on this account to defendant M. D. Connolly, on the written order of said Francis Denigan, dated November 28, 1897, the sum of one thousand dollars. It is not disputed, and cannot well be under the decisions, that a motion for a nonsuit should not be granted where plaintiff’s evidence is such, that, if the ease had gone to a jury on that evidence and a verdict had been rendered for him, the evidence would be held sufficient to support the judgment upon the verdict. The rules as to nonsuit are the same, whether the trial is by the court or by a jury.
(Goldstone
v.
Merchants’ I. and C. S. Co.,
Clearly, it was never intended by this court to lay down a rule requiring demonstration in such matters,—that is, such a degree of proof as excluding possibility of error, produces •absolute certainty. (Code Civ. Proc., sec. 1826.) Such proof is never required. Generally, moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind, and evidence which ordinarily produces such conviction is satisfactory. (Code Civ. Proc., secs. 1826, 1835.) Even in criminal cases, wherе life and personal liberty are involved, the law goes no further than to require that guilt shall be proved beyond a reasonable doubt, the accepted definition of which is, that state of the case which, after an entirе comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge. We are of the opinion that it is incumbent on the party seeking to overcome the presumption of community property to do no more than to produce such legal evidence as,
under all the circumstances of the particular case,
would ordinarily produce conviсtion in an unprejudiced mind, and that in the face of such evidence, the naked presumption, unsupported by any testimony, must fall. In considering whether or not such a degree of proof has been attained, we have the right to сonsider such presumptions and inferences as are authorized by the'law of evidence. That a presumption declared by law has its place in such a dispute was acknowledged by this court in
Denigan
v.
San Francisco Savings Union,
It was established beyond doubt by the evidence that Ellen Denigan was the owner of two parcels of real estate at the time of her marriage, and that the same were therefore her separate property. It is presumed by direction of law that they continued to be her separate property as long as she owned them, and that the proceeds of the sаle thereof were, and continued to be, her separate property. The only question, then, concerning which there could be the slightest doubt is as to whether, these proceeds were sufficiently traced into the аccount with the defendant bank that existed at the time of her death, for, under the evidence in the record, there can be no reasonable doubt in the mind of any unprejudiced person that the account opened October 19, 1896, with “Francis Denigan or James Denigan” with a credit of $2,413.33, was opened by a deposit of the $2,413.33 that day taken from that account. That account, prior to the death of Ellen Denigan, had, exclusive of interest dividends, but two credit items, one of July 6, 1886, of seventeen hundred dollars, and one of February 27, 1888, of thirteen hundred dollars. It is fairly inferable from the circumstances shown, that the first deposit was the seventeen hundred dollars, on the same day withdrawn from the аccount of “Frank or Ellen Denigan” with Father Maraschi, and that the second was a portion of the proceeds of the sale made February 24, 1888, of Ellen Denigan’s Bryant-Street property, and such, we think, would be the natural cоnclusion from the uncontradieted facts. It is also fairly inferable from the evidence before the court, that the eighteen hundred dollars deposited with Father Maraschi to the credit of “Frank or Ellen *397 Dunigan, ’ ’ on August 18,1884, and which was the оnly credit item except a dividend for interest, was a portion of the two thousand dollars, paid her not earlier than August 13, 1884, for her Shipley-Street property. In the absence of evidence of circumstances, the effеct of which would be to impair the showing made, we are satisfied that the proceeds of the sales of the separate property have been traced clearly enough to support a finding that the money оn deposit with defendant bank at the time of Ellen Denigan’s death was her separate property.
It appears that two hundred and fifty dollars was deposited to the credit of the “Francis Denigan or James Denigan” acсount on July 9, 1897, and it is said that this certainly was not the separate property of Ellen Denigan, and that, this must be held to be a part of the one thousand dollars, paid to defendant Father Connolly. If this be granted, it would simply reduce plаintiff’s claim by two hundred and fifty, dollars, and would not take away his right of recovery of the remaining seven hundred and fifty dollars. It is .suggested by appellant that the two hundred and fifty dollars was probably deposited in this account to partially cоmpensate for six hundred dollars withdrawn from the original account after the death of Ellen Denigan; but it is doubtful if any such inference is warranted by the evidence in the record.
There was no merit in either of the other grounds specifiеd in the motion for nonsuit. Plaintiff is the administrator of the estate of Ellen Denigan, and, so far as appears, the only administrator that said estate has ever had, and, as such, he is entitled to the possession of all her personal property as against the world.
The judgment is reversed and the cause remanded for further proceedings.
Shaw, J., and Van Dyke, J., concurred.