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District Court of Appeal, Fourth District, California.


Civ. 3973.

Decided: July 20, 1950

Glendon L. Tremaine and Franklin L. Knox, Jr., Los Angeles, for plaintiff and appellant Kate W. Brucks. McNulty & Squier, San Diego, for defendant and appellant Adele W. Tapley.

Action to enforce a trust and to quiet title to personal property.

This action was instituted by plaintiff to determine the ownership of a fund of money deposited in a savings and loan association.

Jeanette W. Kinkade, during her lifetime, invested funds with the Home Federal Savings & Loan Association in San Diego. At her instruction, the following notation was made on the accounting record of the association: ‘Kinkade, Jeanette W., in trust for Kate W. Brucks'. A deposit of $1500 was made at the time the account was opened (July 8, 1947); an additional deposit of $2,242.47 was made on October 6, 1947, and certain withdrawals in small amounts were made thereafter. No change was made in the names in which this account stood and no subsequent instructions, relative to its disposition, were given to the loan association.

Kate W. Brucks was a second cousin of decedent and had been her very close friend for money years. Shortly after the account was opened, the decedent stated to the husband of plaintiff that she had put some money in the bank for Kate W. Brucks.

On January 24, 1948, the decedent wrote a letter, which was discovered in her effects shortly after her death, which letter is as follows:

‘Jan. 24, 1948

Dear Kate——

I am sick and in case I should pass away, will you kindly look after my belongings?

My bank book is in your name & mine.

First thing draw out all the money & put it in your name.

If there is anything left after all expenses are paid will you kindly give the remainder to my son Frederic Kinkade. He needs it.

I expect you to take money for all your expenses caused by this.

Also if there is any pictures, bedding etc he would want please let him have them.

With much love


My lace dress is in bottom of trunk also bank book.

I wish to be buried in Kensico Cemetery by my husband and Dear Gladys.


Cedar Chest & small chair belong to me. They are for you.'

It is admitted that the letter was entirely written, dated and signed by the decedent and was not mailed to the addressee or delivered to her.

On February 5, 1948, the decedent executed a formal will, in which she revoked all prior wills; intentionally made no provision for her son, Frederick, W. Kinkade, and bequeathed all of her estate, both real and personal, to Adele W. Tapley (defendant herein), appointing her as executrix.

Kate W. Brucks instituted this action against the executrix to determine the ownership of the money so deposited. The trial court determined that the plaintiff is the owner of the legal title to the funds so deposited, as trustee, and in trust for Frederick W. Kinkade, the son of the testatrix; that the plaintiff has no right, title, claim or interest in or to said funds or any part thereof, except as trustee; and that the trust is now terminated. The trustee was ordered to pay over to Frederick W. Kinkade the residue of the said trust, subject to the payment of attorney's fees, taxes, if any, and costs incurred in the administration of the trust and of this case.

The plaintiff appeals from that portion of the judgment in which it was decreed that Frederick W. Kinkade was entitled to a beneficial interest in and to the subject matter of the action and that portion which ordered distribution to him of the funds in controversy.

The defendant executrix appeals from the whole of said judgment.

The principal questions before us for decision are whether a trust in favor of Kate W. Brucks in the deposited funds was created by the decedent and if so, was the trust revoked by her subsequent acts.

The rule in California with reference to the creation of trusts of this kind is stated in Kuck v. Raftery, 117 Cal.App. 755, 757, 4 P.2d 552, to be that where a person deposits his own money in his name and that of another jointly, with the intention of enabling the other party to draw the money after his death, a valid trust is created in favor of the other person as beneficiary. In Kosloskye v. Cis, 70 Cal.App.2d 174, 160 P.2d 565, the California and other cases on this subject are discussed and the rule there stated is that the problem is one of intent of the depositor and that this is a question of fact for the trier of the facts. It was there stated, 70 Cal.App.2d at page 181, 160 P.2d 565, that if the form of the deposit creates but an inference the finding of the trial court thereon cannot be attacked successfully; that if the form of the deposit creates a presumption, such a presumption is a rebuttable one and evidence is admissible to show the true intent of the decedent.

In the instant case there is evidence that the decedent indicated to the husband of plaintiff that she had placed funds in the bank for the plaintiff, and in the letter of January 24, 1948, the decedent stated that her bank book was in her name and the name of the plaintiff. Plaintiff was directed to draw all of the money out and put it in her name and use it in a certain manner. The trial court found that the opening of the account herein created a valid trust. This finding cannot here be successfully attacked. In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689. The trial court found that the letter of January 24th modified the original trust and directed the disposition of the deposited funds. This finding is likewise binding upon us.

In the will of February 5th, the testatrix intentionally made no provision for her son, Frederick, and gave all of her property to her cousin, Adele W. Tapley. The provisions of the will by which the testatrix omitted to provide for her son is consistent with the inference that the testatrix knew that she had made provision for him by the modification of the trust in her letter of January 24th.

The argument is advanced that the letter was inadmissible to show the intention of the trustor at the time she made the deposits in question. However, we conclude that the acts, conduct and declaration of the decedent at a time subsequent to the deposit were admissible in evidence to show such intent. Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530; Williams v. Kidd, 170 Cal. 631, 648, 151 P. 1, Ann.Cal.1916E, 703; and Jean v. Jean, 207 Cal. 115, 121, 277 P. 313, and in the instant case the letter, admitted to be in the handwriting of the decedent, sufficiently indicates her intention.

It is contended by plaintiff Brucks. and admitted by the defendant Tapley, that the trial court herein exceeded its jurisdiction in attempting to render a decision in favor of Frederick Kinkade, who was not a party to the action. The cases cited in support of the contention are Overell v. Overell, 18 Cal.App.2d 499, 64 P.2d 483; Samter v. Klopstock Realty Co., 31 Cal.App.2d 523, 88 P.2d 250; Hutchinson v. Cal. Trust Co., 43 Cal.App.2d 571, 111 P.2d 401; and Stockwell v. McAlvay, 10 Cal.2d 368, 74 P.2d 504. The rule as announced in these cases is that a judgment may not be entered either against or in favor of one who is not a party to the action. However, in so far as the judgment defines the rights of the plaintiff Brucks, it is binding upon her, she being the party plaintiff. The judgment herein, in so far as its provisions that the plaintiff, Kate W. Brucks is the owner of the deposited funds, as trustee, and in trust for Frederick Kinkade, and that the plaintiff has no right, title, claim or interest in or to said funds or any part thereof except as trustee, are affirmed, and in so far as the said judgment directs the payment of the trust moneys or any part thereof to the said Frederick Kinkade, it is reversed.

Judgment affirmed in part, reversed in part. Each party to bear her own costs on appeal.

MUSSELL, Justice.

BARNARD, P. J., concurs.

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