Bernhardv.Bank of America National Trust & Savings Assn.

In June 1933, Mrs. Clara Sather, an elderly woman, made her home with Mr. and Mrs. Charles O. Cook in San Dimas, California.¹ Because of her failing health, she authorized Mr. Cook and Dr. Joseph Zeiler to make drafts jointly against her commercial account in the Security First National Bank of Los Angeles.² On August 24, 1933, Mr. Cook opened a commercial account at the First National Bank of San Dimas in the name of "Clara Sather by Charles O. Cook."³ No authorization for this account was ever given to the bank by Mrs. Sather.⁴

Thereafter, checks drawn by Cook and Zeiler on Mrs. Sather's commercial account in Los Angeles were deposited in the San Dimas account.⁵ Checks were drawn upon that account signed "Clara Sather by Charles O. Cook" to meet expenses of Mrs. Sather.⁶ On October 26, 1933, a teller from the Los Angeles Bank called on Mrs. Sather at her request to assist in transferring her money from the Los Angeles Bank to the San Dimas Bank.⁷ In the presence of this teller, the cashier of the San Dimas Bank, Mr. Cook, and her physician, Mrs. Sather signed by mark an authorization directing the Security First National Bank of Los Angeles to transfer the balance of her savings account in the amount of $4,155.68 to the First National Bank of San Dimas.⁸ She also signed an order for this amount on the Security First National Bank of San Dimas "for credit to the account of Mrs. Clara Sather."⁹ The order was credited by the San Dimas Bank to the account of "Clara Sather by Charles O. Cook."¹⁰

Cook withdrew the entire balance from that account and opened a new account in the same bank in the name of himself and his wife.¹¹ He subsequently withdrew the funds from this last mentioned account and deposited them in a Los Angeles Bank in the names of himself and his wife.¹² Mrs. Sather died in November 1933.¹³ Cook qualified as executor of the estate and proceeded with its administration.¹⁴ After a lapse of several years he filed an account at the instance of the probate court accompanied by his resignation.¹⁵ The account made no mention of the money transferred by Mrs. Sather to the San Dimas Bank.¹⁶

Helen Bernhard, Beaulah Bernhard, Hester Burton, and Iva LeDoux, beneficiaries under Mrs. Sather's will, filed objections to the account for this reason.¹⁷ After a hearing on the objections the court settled the account, and as part of its order declared that the decedent during her lifetime had made a gift to Charles O. Cook of the amount of the deposit in question.¹⁸ After Cook's discharge, Helen Bernhard was appointed administratrix with the will annexed.¹⁹ She instituted this action against defendant, the Bank of America, successor to the San Dimas Bank, seeking to recover the deposit on the ground that the bank was indebted to the estate for this amount because Mrs. Sather never authorized its withdrawal.²⁰ In addition to a general denial, defendant pleaded that the money on deposit was paid out to Charles O. Cook with the consent of Mrs. Sather.²¹ Defendant also pleaded that this fact is res judicata by virtue of the finding of the probate court in the proceeding to settle Cook's account that Mrs. Sather made a gift of the money in question to Charles O. Cook and "owned no sums of money whatsoever" at the time of her death.²² Plaintiff demurred to both these defenses and objected to the introduction in evidence of the record of the earlier proceeding to support the plea of res judicata.²³ The trial court overruled the demurrers and objection to the evidence and gave judgment for defendant on the ground that Cook's ownership of the money was conclusively established by the finding of the probate court.²⁴ Plaintiff has appealed.²⁵