Kobida v. Hinkelmann

Defendant appeals from a judgment in plaintiff’s favor in an action to establish and have enforced against the estate of Amalia Hinkelmann, deceased, an alleged express oral trust involving personal property. The plaintiff, Roy Kobida, is the surviving son of the decedent and Joseph Kobida, who predeceased her. The mother died intestate in April, 1939, leaving surviving her as heirs at law the plaintiff, aged 42 years, another son two years younger than plaintiff, and her second husband, Adolf Hinkelmann, who was appointed administrator of her estate and is the de

Section 2221 of the Civil Code provides that “. . . a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty: 1. An intention on the part of the trustor to create a trust, and 2. The subject, purpose and beneficiary of the trust. ’ ’ And it is well settled that such trusts must be proved by parol evidence, but that the evidence must be “clear, satisfactory and convincing.” (See Taylor v. Bunnell, 211 Cal. 601 [ 296 Pac. 288 ], and 23 A. L. R., note, p. 1500.) In the ease of Lefrooth v. Prentice, 202 Cal. 215 [ 259 Pac. 947 ], the term “clear and unequivocal” is used. As first ground of appeal defendant contends that the evidence in the present case does not measure up to the required legal standard. It has been held repeatedly, however, that whether the evidence in any given case is of the character mentioned must be determined by the trial court, and that where such determination is not wanting in evidentiary support a reviewing court must accept such determination as conclusive. (25 Cal. Jur. p. 248; Taylor v. Bunnell, supra; Brison v. Brison, 90 Cal. 323 , 334 [ 27 Pac. 186 ]; Mead v. Mead, 41 Cal.

A fair picture of the background of the family may be had from the following facts, as they appear from the evidence : Plaintiff’s father and mother were Czechoslovakians. In 1906 they moved from Chicago to Oakland with their two sons, Boy being then about 12 years old. Thereafter they made Oakland their permanent home. They were illiterate, hard working, thrifty people. For many years Joseph Kobida, the husband and father, worked as a mechanic for the Southern Pacific Company. He died in 1929, leaving two pieces of residential property he and his wife had acquired, and a $2,400 bank account standing in his name, all of which was turned over to her as community property. The mother was queer in some ways, but especially shrewd and thrifty. She was able to read and write very little English, but understood the value of money, and how to earn and save it. The family lived in a small home on an ordinary sized city lot, and besides doing her own housework, Mrs. Kobida found time to earn money in various ways. She did housework for other people, raised goats and sold the milk, raised chickens and sold the eggs, and made and sold wine. She also carried on a personal loan business with neighbors, for amounts ranging up to $500, at high rates of interest. She usually wore old and quaint clothing, and around her own premises frequently went barefooted. Plaintiff left school at the age of twelve. His ability to read was limited, but he was very industrious and apparently inherited his mother’s propensities for hard work and frugality. Except for the time he served as an enlisted soldier overseas during the world war, he lived home almost continuously until 1928; and the evidence shows that his mother had a very deep devotion for him and that he always

With respect to the matter of the creation of the trust plaintiff testified most positively that the understanding he had with his mother about the money he gave her was that she was “taking care” of his money for him, “saving” it for him; that she “invested it” for him; and told him the money would be his whenever he wanted it; that she would say, “now, this money that you are giving me, I am saving it for you and you can have it anytime you want it”; that he did not ask her at any time for the return of any of the money because he did not need it, and if he did not take it, it would come to him when she died. To quote from his testimony : “. . . it was always known that of course when I turned this money over to her, why, she would take care of it for me. Q. She was to take care of it for you and leave it to you when she died? A. No, if she died, I would expect it, yes. Q. You did not expect it before, did you? A. I didn’t have occasion to expect it before. I did not have no need for it.” Again, “I always expected the money when she died, but I could get it whenever I wanted it, but I had no occasion to ask for it at any time. Q. The only reason you never asked your mother for any money or for the money prior to the time of her death, was because you did not have any occasion for it and did not need it? A. I did not need it, I did not have occasion to.”

In strong corroboration of plaintiff’s testimony there was introduced in evidence in his behalf a bank book issued by the San Francisco Bank, showing that on January 9, 1931, she opened an account in the name of “Mally Kobida Trustee for Gejza Kobida,” and deposited therein $9,346.25. “Mally Kobida” or “Molly Kobida” were the names by which she was generally known; and “Gejza” was apparently one of plaintiff’s given names, and she usually referred to him as “her Gejza.” Plaintiff further testified that his mother showed him bank books issued to her in her name as trustee for him, and that she told him the money deposited therein was his; that she also showed him Postal Savings Certificates amounting to $1,700, saying the money was his; and that she discussed different investments with him but used her own judgment in making them. And in further corroboration of plaintiff’s testimony he produced three disinterested witnesses, all friends and neighbors of Mrs. Kobida, who testified in effect

As to the various sums of money plaintiff turned over to his mother, his testimony was in substance as follows: He went to school about a year after they came to California. He had been working at odd jobs in Chicago, and after moving to Oakland continued to work after school and during vacations. From 1912 until he enlisted in the army in 1917 he worked at various jobs as laborer, apprentice and mechanic, earning $22 or $25 a week on some jobs, and as much as $6.40 a day with overtime on others. He lived at home all during this period, except on a couple of jobs where he lived at the job. He testified that he gave his mother all his earnings, and she gave him back what money he needed for spending money. When he worked away from home temporarily, either his board was deducted by his employer from his check, or his mother gave him the money to pay it. She bought his clothes, and once gave him about $75 to buy an automobile. While he was overseas with the army he had $15 a month (approximately half of his pay) sent to his mother, and when he received his bonus of $1,400 he turned it over to her. After the war he worked again at different places as a mechanic, earning as high as $7 a day with overtime, and continued to turn over all his wages to his mother, and she gave him back what spending money he wanted, amounting to about $3 a week. For a period of five or six months he engaged in the automobile repair business with his brother, during which time he‘did not give his mother any money. After this venture he went back to work as a mechanic for the Moore Shipyards, the Victory Motor Company, the Durant Motor Company and others, and again earned at times over $7 a day. Out of these earnings he gave his mother about $25 a week; but about this time concluded to go into business for himself, so he opened a savings account in his name and

The trial court found that the amount due plaintiff and held in trust for him by his mother at the time of her death was $6,000; and while it does not appear just how the trial court arrived at that amount, the evidence clearly shows that $6-,000 was withdrawn by her from the $9,346.25 trust account in the San Francisco Bank, and by her invested in the Mezirka loan. The circumstances relating thereto, as explained by plaintiff, were these: Early in 1939 his mother held a second mortgage on the Mezirka property, upon which there was then due $2,800. The Bank of Italy held the first mortgage, given originally to secure a loan of $10,000, which had been reduced to $6,000. The bank called the loan, and in order to protect the second mortgage plaintiff’s mother acquired the first mortgage; and a new note was given to her for $9,-260, secured by a deed of trust. The trust account with the bank shows a $6,000 withdrawal on January 16, 1939, which left a balance therein of $279.17; and the new Mezirka note and trust deed bear date January 30, 1939. Plaintiff testified definitely and positively that his mother withdrew the $6,000 from the trust account for the purpose of investing the money in the Mezirka loan; that before doing so she talked the matter over with him and he advised against it; and that after-wards she told him that she had done so on the advice of Hinkelmann. The trust account further shows that previously and on July 9, 1935, plaintiff’s mother withdrew $3,000 therefrom, which plaintiff testified went into the Weber loan. In this connection the evidence shows that the mortgage is dated March 23, 1936; that it was made out originally to “Molly Kobida and Roy Kobida, her son,” but that sometime subsequently a line was drawn through the words “and Roy Kobida, her son.” When, why or by whom this was done the evidence does not explain. - 0

It is quite obvious that the foregoing evidence is legally sufficient to sustain the trial court’s conclusion that plaintiff established all of the elements of a voluntary trust as they are specified in sections 2221 and 2222 of the Civil Code; and that at the time of the death of plaintiff’s mother at least $6,000 of plaintiff’s money was on deposit or invested in secur

Defendant’s second major point is that the findings are insufficient to support the judgment. While they are not as definite or comprehensive as they might have been, there is no such fatal defect therein as would warrant a reversal on that ground. They cover the matter of the creation of the trust, the amount of trust funds for which the trustee was responsible to plaintiff at the time of her death, and show that the full amount thereof was then on deposit in her name or invested in the securities held by her at the time of her death. Defendant apparently takes the position that where a deceased trustee has mingled trust funds with his own and subsequently invested the mingled funds in property which is taken in his own name, the beneficiary is relegated to the

Defendant’s final contention relates to the question of the application of the doctrine of laches and the statute of limitations. The evidence shows, however, that under the terms of the trust plaintiff’s mother was to hold the money and keep investing it for plaintiff until he asked for the return thereof; that if he did not ask for it before her death it would be left to him at that time. He testified that he did not ask for it during her lifetime; and she made no provision for its return to him upon her death. She died in April, 1939, and the present action was instituted the following September.' Therefore there was no question of laches, and the statute of limitations did not start to run until the trust was repudiated by failure to make provision for the return of the trust funds upon her death.

The judgment is affirmed.

Peters, P. J., and Ward, J., concurred.