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District Court of Appeal, Second District, Division 3, California.


No. CIV. 18069.

Decided: August 31, 1951

Perry Bertram, Los Angeles, for appellant. Irvin C. Evans, Paul J. Otto, Los Angeles, and Fred W. Heatherly, Arcadia, for respondent.

Action to establish a constructive trust in personal property consisting of money on deposit in a bank and money and certificates of corporate stock deposited with a stockbroker, which property was held by the defendant and her father Eugene Parisek in joint tenancy. Mr. Parisek died on March 19, 1948. Plaintiff is his granddaughter. Plaintiff's mother, who died about 1938, and the defendant were the only children of Mr. Parisek. Plaintiff appeals from a judgment of nonsuit.

Appellant contends that the evidence shows that the joint tenancies were created for convenience and under an agreement between Mr. Parisek and defendant that, upon the death of Mr. Parisek, the defendant would divide equally all the joint tenancy property between defendant and plaintiff.

In December, 1934, the decedent (Mr. Parisek) transferred his bank account to himself and the defendant as joint tenants. The defendant also signed the card covering the joint tenancy agreement. In April, 1947, the decedent and defendant executed an agreement whereby decedent transferred his investment securities account to himself and defendant as joint tenants. During the lifetime of decedent, the defendant did not deposit or withdraw any money from the bank account and she did not have any transaction with the stockbroker regarding the securities account.

Defendant testified that at the time of the death of decedent there was a balance of $1,792.20 in the bank account; that there were securities in the account with the stockbroker which were of the value of $14,239.79, and that $180 was on deposit in said account. Decedent resided in Los Angeles, and the plaintiff resided in Chicago. It appears that defendant resided in Santa Barbara. Plaintiff testified that each time the decedent came to Chicago they spent their time together; they corresponded with each other weekly, and they wrote in affectionate terms; in 1941, in response to an invitation from the decedent, plaintiff came to Los Angeles to visit him; she remained in Los Angeles six weeks, and during that time she lived near the place where he lived, and they were together constantly; in a number of conversations which they had during that visit decedent told plaintiff that he had made arrangements that everything he owned would be divided equally between the “plaintiff [defendant] and myself”; he even pointed out his furnishings, personal jewelry and collector's items and stated that they would also be divided equally between plaintiff and defendant; during the last four or five years of his life the letters which decedent wrote to her indicated that his health was failing, and a letter written by him to plaintiff in May, 1947, indicated that he had been confined to his room over two weeks by illness.

Mr. Friend, who had known decedent since 1892, testified that he and decedent had been intimate friends from that time to the time of decedent's death; about 1935, after the death of Mrs. Parisek, the decedent told the witness that he was putting his house in order so that plaintiff and defendant, whom he always referred to as his “two kids,” would get everything he had; he (the witness) had seen decedent frequently during the last fifteen years of his life; he and decedent had a lot of things in common to talk about, and they always talked about plaintiff and defendant; on several occasions decedent told the witness that whatever property, stock and furniture he had was to be divided between plaintiff and defendant; in 1945 the decedent told the witness that he had approximately $15,000 in government bonds for each of the girls (plaintiff and defendant) and that those bonds were in the names of decedent and “each of those girls” as joint tenants; in April, 1947, the witness visited the decedent in his room, and they had a conversation concerning decedent's property; decedent told him at that time that whatever he had was to be divided equally between plaintiff and defendant; he stated that his government bonds were taken care of “because they were in his and his daughter's name and his and his granddaughter's name, and all other stock including personal property was to be divided equally between those two because that was all he had in the world”; he also said there was cash in the bank and there were some stocks which were to be divided equally between plaintiff and defendant; on said occasion decedent stated that some day he would move from the club (where he was then living) into an apartment and that his rugs, paintings and furniture would be divided between plaintiff and defendant; at that time the decedent told the witness that he had been ill about three weeks.

Defendant testified that for a period of approximately 10 years the decedent and the defendant visited with each other from one to several days almost every week.

The stockbroker testified that in 1946 the decedent began to have conversations with him relative to transferring the decedent's securities to some of his heirs; the decedent stated that he was concerned about inheritance taxes, and the broker “pointed out the advantages of a joint tenancy”; about the time the decedent transferred his securities from his personal account to the joint tenancy account, he told the broker that if anything happened to him he wanted to leave the securities to the defendant.

The evidence shows, in substance, that decedent told plaintiff and Mr. Friend that, upon decedent's death, his property was to be divided equally between plaintiff and defendant. There was no evidence that decedent mentioned the joint tenancy in the bank account or in the securities account in any conversation with the plaintiff or Mr. Friend. There was no evidence to the effect that the joint tenancy in either the bank account or the securities account was made, or would be made, in order to create a trust for the benefit of plaintiff. There was no evidence that decedent said that the property included in those joint tenancies should be divided equally between plaintiff and defendant. There was no evidence that defendant said that she would hold any part of the property in trust, and there was no evidence that decedent or anyone said in her presence that she should hold a part of it in trust. The evidence of the existence of a trust must be clear and convincing before it can be deemed sufficient to overcome the legal effect of a joint tenancy agreement. Estate of Gaines, 15 Cal.2d 255, 266, 100 P.2d 1055. It is to be noted that plaintiff alleged in the complaint that, by the terms of decedent's will, he gave one-half of his estate to defendant, and he gave one-half to defendant and one Levi as cotrustees for the benefit of plaintiff until she attained the age of 32 years, at which time said one-half should be distributed to her. It might well be that decedent's statement, as shown by the testimony, that his property was to be divided equally between plaintiff and defendant was a reference to the provisions of his will. It is also to be noted that, with respect to making joint tenancies, decedent created a joint tenancy with the plaintiff, and also created a joint tenancy with the defendant, in government bonds of the value of $15,000.

Appellant cites Jarkieh v. Badagliacco, 75 Cal.App.2d 505, 170 P.2d 994, wherein the plaintiff, who was the brother of the defendant, sought to establish a one-half interest in bank accounts which were in the names of their mother and defendant as joint tenants. The facts in that case were quite different from the facts in the present case. In that case there was evidence that at the time said accounts were opened and many times thereafter the mother stated, in the presence of her daughter (defendant), that it was her intention and the intention of the daughter that the accounts were to be divided equally between the son and daughter upon the mother's death. It was held therein that an express oral trust was proved.

Appellant contends further that it was error to exclude the testimony of Mr. Sirota. At the trial the appellant offered in evidence the deposition of Mr. Sirota, who is licensed to practice law in Illinois. Respondent objected to the offer of that testimony on the ground that it was a privileged communication between a client and an attorney. The objection was sustained. Appellant thereupon offered to prove that if Mr. Sirota were permitted to testify he would testify, in substance, that he was in Los Angeles in August and September, 1947; during that time decedent asked him if he had a little time to discuss a matter which was very personal; he (Mr. Sirota) replied he would be glad to assist him; they went to decedent's room where they talked about decedent's family, and then the decedent told him that he wished to convey title to the graves in Graceland Cemetery to the plaintiff; the decedent also said he would pay to have the graves cared for during his lifetime, and he asked Mr. Sirota to exact a promise from plaintiff, when he returned to Chicago, that she would take care of the graves after decedent's death; decedent then stated that he had everything arranged so that everything in his estate would go to plaintiff and defendant, share and share alike; decedent also stated that he had had several heart attacks and could not get to the bank, and he had an arrangement whereby defendant could draw out the funds he needed “or any stocks or bonds,” and she had “access to those”; he had “these in a joint safe account”; he stated further that plaintiff would receive one-half of what he possessed, just as if his own daughter were living—that there was a definite arrangement which he made with defendant and “she [defendant] understands it”; after returning to Chicago, Mr. Sirota gave to plaintiff the instructions which decedent had requested that he give to her, and plaintiff promised to care for the graves; he then prepared the deed, sent it to a bank in California and, after it was returned to him, he delivered it to the plaintiff. The respondent objected to said offer of proof and the trial court sustained the objection. The court did not err in excluding the testimony.

The judgment is affirmed.

WOOD, Justice.

SHINN, P. J., and VALLÉE, J., concur.

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