Brezzo

Plaintiff, as executrix of the last will of Margherita Brangero, deceased, brought this action to . recover the sum of $320.70, which the appellant, the surviving husband of the deceased, withdrew from the Bank of Italy, after his wife’s death, upon filing the affidavit provided for in section 1454 of the Code of Civil Procedure, and without procuring letters of administration. In such affidavit the defendant stated that he was the surviving husband of the deceased and that the total amount left by her on deposit in all the banks of the state of California at the time of her death did not exceed $1,000. It was stipulated at the trial that all of the money so withdrawn by the defendant was used by him in payment of the hospital expenses, doctor’s bills, and funeral expenses of the deceased wife. The lower court decided adversely to Brangero, and gave judgment against him for the fund withdrawn from the bank. From that judgment he appeals.

[1] Section 1454 of the Code of Civil Procedure, in so far as pertinent to this appeal, reads as follows: “The surviving husband or wife” (or other heirs, as the case may be) “may, without procuring letters of administration, collect of any bank…