Waters v. Nevis

This is an action brought by the plaintiff, as administratrix of the estate of Antone H. Waters, deceased, to recover the sum of $1,240, alleged to be money had and received by the defendant Nevis from Antone H. Waters, under the circumstances detailed in the complaint, and when, it is alleged, that said Waters was incompetent to conduct any transaction. The complaint was unverified. The answer was a general denial. The evidence was quite voluminous. The court found the facts in the defendant’s favor and rendered judgment accordingly. The plaintiff prosecutes this appeal.

The facts of the case, concerning which there is little if any dispute, show that Antone H. Waters was a man of Portuguese extraction, who had accumulated some considerable property, but who during the closing years of his life had become afflicted with various physical ailments, and having also become estranged to some extent from his family, had, in about the year 1913, gone to live at the home of the defendant Nevis, whom he had known for a number of years. While living there, and in the month of February, 1914, said Waters and Nevis went together to the National Bank of D. 0. Mills & Co., in Sacramento, and there deposited the sum of $1,240 in a joint account and under a written agreement, which contained the following words: “The money now deposited and also money which shall at any time be deposited by us or either of us with the National Bank of D. 0. Mills & Co. in this account No. 8340, will be so deposited by us and is to and will be received and held by it with the understanding and upon the condition that the same and all dividends and interest thereon and all accumulations thereof are payable to and shall be collectible by us or either of us during our joint lives, and then belong absolutely to and be

It is not seriously insisted by the appellant that the defendant Nevis would not have become the joint owner of the money deposited in the bank under the foregoing agreement, with the right of survivorship thereto upon the death of Waters, had the latter been capable of making and had made the deposit of his money in that form. The construction of deposit agreements of the kind shown here has been practically settled since the decision of the case of Booth v. Oakland Bank of Savings, 122 Cal. 19 , [ 54 Pac. 370 ], which has been upheld in the following cases: Carr v. Carr, 15 Cal. App. 480 , [ 115 Pac. 261 ]; Drinkhouse v. German Sav. & L. Soc., 17 Cal. App. 162 , [ 118 Pac. 953 ] ; Denigan v. Hibernia Sav. & L. Soc., 127 Cal. 137 , [ 59 Pac. 389 ] ; Estate of Hall, 154 Cal. 527 , [ 98 Pac. 269 ], The appellant’s contention that Nevis’ withdrawal of the money in question in May, 1914, was an act of bad faith toward Waters, which operated to terminate his rights to any portion thereof and destroy the trust relation created by the bank deposit, cannot avail against the finding of the court upon sufficient evidence that the withdrawal of said money was accomplished with Waters’ consent; and even were it otherwise, the status of the parties would not be changed by such withdrawal. (Sprague v. Walton, 145 Cal. 228 , [ 78 Pac. 645 ].)

This brings us to the main and, in fact, only contention upon which the appellant relied in the trial court, viz., that of Waters’ mental incompetency during the period including the date of the deposit agreement and continuing up to the time of his death. The testimony upon this subject was, as

The judgment is affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 25, 1916, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 23,1916.