1 P.2d 1031 | Cal. Ct. App. | 1931
In this action the plaintiff seeks to recover $11,500 which he claims Marie Bruton Teeter was holding in trust for him. The plaintiff claims that he lived with Mrs. Teeter for some five years before her death, although they were never married, and that in September, 1927, he handed her $11,500 to keep for him. For some considerable time before her death Mrs. Teeter was running three hotels in Los Angeles. She went to a hospital for an operation in April, 1928, and died a few days later. Prior to going to the hospital she assigned certain insurance policies to the plaintiff, made her will, and purchased a cashier's check for $8000 at the Bank of Italy, which was made payable to the plaintiff or to herself, which check was found after her death in her safety deposit box in that *474 bank, to which box the plaintiff had no access. After the defendant was appointed executor of her last will the plaintiff filed his claim against the estate for $11,500 for money loaned to the deceased in her lifetime. The claim having been rejected, this action was filed. The complaint set up a first cause of action for $11,500 loaned to Marie Bruton Teeter at her special instance and request, and a second cause of action for $164 alleged to have been advanced to pay certain nurses during her last illness. Subsequently an amended complaint was filed setting up the same two causes of action and adding a third, in which it is alleged that "on or about September 17, 1927, one Marie Bruton Teeter became indebted to plaintiff in the sum of $11,500 for money deposited with and paid over to said Marie Bruton Teeter by plaintiff to hold in trust for him; that at the times that the aforesaid moneys were deposited with said Marie Bruton Teeter, it was agreed between her and plaintiff that she would hold said money in trust for said plaintiff and pay and redeliver the same unto him upon demand, at his option". It is then alleged that no part of said sum has been repaid; that the defendant has been appointed executor of Mrs. Teeter's estate; and "that subsequent to the death of said Marie Bruton Teeter said trust fund came into the possession of said defendant who now holds and is in possession of same".
The plaintiff was not present at the trial, but his deposition was offered. Objection having been made that the plaintiff could not testify under subdivision 3 of section
On cross-examination he testified that he had won the money gambling, and that he handed the money to her that night at the apartment when no one else was present; that she told him he had better let her take it because he might gamble it all back and lose it; and that he gave it to her in paper money but he could not remember what the denominations were. He then testified: "Q. Did she give you a receipt for the money? A. She did not. Q. Did you ever ask her for a receipt for the money? A. No. Q. At the time you say you gave her this money at the apartment house on the night you have already testified to, did you tell her when you wanted the money back? A. No, I did not. Q. Did you tell her you ever wanted the money back? A. I just gave it to her and she kept the money. It was natural for me to figure that I would get it back whenever I wanted it." Immediately following this, he was asked if anything had been said between them as to when the money was to be returned. A motion to strike his answer was made at the time the deposition was taken and, at the trial, was granted by the court. Following the making of the motion the witness answered "All right. I will say that she told me `I will give it to you whenever you need it.'" He was then asked: "Was there ever anything said as to whether or not it was to be returned at all?" The witness was instructed not to answer the question, and did not. The deposition shows that the witness was instructed by his counsel not to answer more than thirty questions, practically all of which were material, and the objections to which were later overruled by the court, but no answers had been made. Among these, he refused to answer whether he knew what she had done with the money. He did, however, testify that he did not deposit it in her bank account for her and that he did not know whether or not it was ever deposited.
The only other evidence offered by the plaintiff was the testimony of a life insurance agent, and of a trust officer of the Bank of Italy. The life insurance agent testified that while collecting some premiums from Mrs. Teeter in *476 the latter part of March, 1928, she requested him to change the beneficiary in certain policies, naming Jack Howard as the new beneficiary, and also told him that this party was known as John L. Holland and was going under the name of Jack Howard. In order to ascertain the insurable interest, he asked her why she wanted to do this, and "she replied she was holding over $11,000 for him and wanted to protect him in the event of her death. I immediately canvassed her for more insurance, thinking I might write more to cover up the difference and she replied that she had made — was going to make arrangements at the bank to take care of the balance." He further testified that Mrs. Teeter signed the change of beneficiary at that time, that it was forwarded to the company, and that later, Mr. Holland received $2,250 from the insurance company on these policies. The trust officer of the bank testified that a few days after Mrs. Teeter's death, he examined her safety deposit box and found therein a check for $8,000 payable to the plaintiff or to Mrs. Teeter, and that the check had been held by the executor and never paid.
As a witness for the defendant, the trust officer testified that on April 19, 1928, the morning Mrs. Teeter died, the plaintiff came to the bank and asked him about Mrs. Teeter's will telling him that his name was Jack Howard, that he was Mrs. Teeter's husband, that she was dead, and that he wanted to get such of her possessions as the bank had. Also, that he said he understood they had a will there. That he also spoke about a check "which she said she had willed to him" and he wanted to know if he could get that from her box. That about ten days after Mrs. Teeter's death he returned and asked for the insurance policies. When the trust officer asked him as to his insurable interest, he replied that the policies were assigned to him for money he had given to Mrs. Teeter, that he had given her the money at odd times and in small amounts, and did not know the total sum. The trust officer also testified that on April 4, 1928, Mrs. Teeter gave him the data for preparing her will. When he asked her as to whether she had any debts, she told him that she had taken care of a debt she owed by means of insurance policies which she had. She told him that she was going to a hospital for an operation, and stated that she wanted to make a bequest to a male friend but did *477 not want her relatives in the east to know about this, as they would not understand. He told her that such a clause in the will could not be kept secret. In reply to her questions as to whether he knew of any other way in which it could be taken care of, he said he knew of none except to give him the money before her death. The trust officer also testified, "when she came back to me later in the afternoon she said she had made arrangements to take care of the bequest she had asked if she could make secretly in her will". He further testified that on May 19, 1928, the insurance agent above referred to called on him and asked for the insurance policies, showing him an assignment signed by Mrs. Teeter, stating that the same had been on file with his company and that Mr. Howard had an insurable interest in the policies through an indebtedness. When asked where he had obtained this information, he replied that "he had gotten it directly from Mrs. Teeter; that he had called upon her to collect some insurance premiums and that at that time she had requested that he change or have changed the beneficiaries of the policies and that he had inquired with reference to the insurable interst which the new beneficiary was to have and that she had replied it was to pay him what she owed him. I inquired further from Mr. Pries as to the full amount of the note, and he stated that she hadn't told him that, that he presumed it was in full or payment in full. Q. Did he mention any indebtedness of $11,500? A. He did not." The record of Mrs. Teeter's account with the bank was put in evidence, covering a period of about two years prior to her death. This shows deposits in varying small amounts, made from ten to fifteen different times a month, and made with about the same frequency prior to September 17, 1927, as from that date until the time of her death. Most of the deposits after September 17, 1927, were under $300 but a few were around $400 and $500, and one on April 9, 1928, was for $700. The record shows no deposit of $11,500 or of any other sum in excess of $700. The only assets of Mrs. Teeter coming into the hands of this defendant as executor, as shown by the record, are her bank account in the Bank of Italy, about $50 in money, and some small personal articles found in her room. The trust officer of the bank testified that he had made inquiries of all other banks in Los *478 Angeles, asking if they had any account, any safety deposit boxes, or any record of business with the deceased, and that he had received a negative reply from each one.
The court found that on September 17, 1927, the plaintiff deposited $11,500 in cash with Mrs. Teeter at her request, upon the express agreement that she would hold such funds in trust for the plaintiff and that she would repay or return said funds to the plaintiff on demand; that these parties had been living together for about five years as common-law husband and wife; that Mrs. Teeter died on April 19, 1928, and the defendant is the executor of her estate; that prior to her death no part of said funds had been returned by her to the plaintiff; that on March 27, 1928, in order to secure the return of part of said funds to the plaintiff, Mrs. Teeter had made the plaintiff the beneficiary in certain insurance policies, from which source the plaintiff has received $2,250; that on April 3, 1928, Mrs. Teeter purchased from the defendant bank a cashier's check for $8,000, made payable to herself or to this plaintiff, and that she deposited said check in her own private safety deposit box in said bank, where it was found after her death; that said sum of $11,500 was so intermingled with the assets of Mrs. Teeter that the said identical trust fund cannot be traced, and that all of the assets of Mrs. Teeter are now in possession of said bank as executor of her estate; that the plaintiff has demanded the cashier's check for $8,000 but delivery of the same has been refused; that the plaintiff presented to the executor of Mrs. Teeter's estate a verified claim for the obligation herein sued on; that the same was rejected on May 14, 1928; that no part of the said claim of $11,500 has been paid except the sum of $2,250, and there remains "a balance due, owing and unpaid from the estate of Marie Bruton Teeter to the plaintiff herein in the sum of $9,250"; that the estate of Mrs. Teeter is solvent; and that the plaintiff John L. Holland is one and the same person as Jack Howard. A judgment for $9,250, with interest from the date of the presentation of the claim to the executor, followed, it being also ordered that this amount be paid to the plaintiff by the defendant "in the due course of the administration" of the estate of said deceased. From this judgment the defendant has appealed. *479
This appeal is argued by both parties almost entirely upon the question of the validity of the judgment, with respect to the third cause of action. It is appellant's contention that neither the pleadings, evidence, findings nor judgment are sufficient to sustain a recovery upon the trust fund theory. It is argued that the evidence is not sufficiently convincing to establish a trust and, further, if the trust fund existed, it has not been traced into the hands of the executor of this estate. If we assume that a trust was here established, the main question presented would be the same as that in Byrne v. McGrath,
In Roncelli v. Fugazi,
"Where a beneficiary is unable to identify a trust fund, or to follow it through its mutations, he is placed in the position of a general creditor. (Byrne v. Byrne,
In Estate of Arms,
In Newport v. Hatton,
[1] While conceding these general rules, the respondent relies upon the case of Noble v. Noble,
[2] To establish a trust requires clear and convincing evidence. (Austin v. Wilcoxson,
[4] Not only do we think the findings in this case are not supported by the evidence, but the judgment does not follow the findings as to the establishment of a trust. The judgment is against the executor as such, and not as a trustee, and it further provides that it shall be payable in the course of administration. If a trust was established and traced into the hands of the defendant, then the trust fund is no part of the estate. And the conclusions of law after stating that the claim was presented to the executor and rejected, are to the effect that the estate is "indebted" to the plaintiff, and that the plaintiff is entitled to a judgment against the defendant "as executor of the estate of Marie Bruton Teeter, deceased", with interest from date of presentation of the claim; and that the amount "so found due to the plaintiff herein as aforesaid" be paid to the plaintiff by the defendant in the due course of the administration of said estate.
[5] Respondent argues that even though it be held that the evidence and findings are not sufficient to establish a trust as alleged in the third cause of action, they are sufficient to establish a loan as alleged in the first cause of action. While it is conceded that the plaintiff's testimony may not be considered in that connection, it is contended that the testimony of the insurance agent as to the statement made to him by the deceased, together with the assignment of the insurance policies and the finding of the cashier's check in the safety deposit box, is sufficient to make out a prima facie case on the first cause of action. *485 Opposed to this is the other evidence, that on September 17, 1927, Mrs. Teeter had about $11,000 in her savings account, indicating no need for a loan; that she tried to find a way to make a bequest to a male friend in a manner that should not become known; that she secured a cashier's check payable either to herself or to the respondent and retained this in her possession; that the insurance agent's first statement to the banker was that she had told him that the assignment of the insurance policies was to pay what she owed to the new beneficiary; that the respondent told the banker that the insurance policies were assigned to him for money he had given her at odd times in small amounts, the total of which was unknown to him; and that she told the banker, when making her will, that she had taken care of her debt by means of her insurance policies. Under the circumstances, it would be a close question, at best, whether the evidence is sufficient to sustain such a finding had it been made. But the fact remains that the court made no such findings. There is no finding that any money was loaned to her, and no finding that the estate is indebted to the plaintiff. The conclusion of law that the estate is indebted to the plaintiff is drawn from the findings which, though somewhat uncertain, purport only to find that the money was delivered to Mrs. Teeter in trust. Nor would we care to make such a finding when the evidence is so close, and when, as we think, the preponderance thereof is the other way. Viewed from the standpoint of either cause of action, we think this case should go back for a new trial.
[6] While it is settled that section
The judgment is reversed and the case remanded for a new trial.
Marks, J., and Griffin, J., pro tem, concurred. *486