Holland

Defendant's demurrer to the complaint was sustained, and plaintiff failing to answer within the time allowed therefor, a judgment was entered for defendant, from which plaintiff appeals. The complaint is in four counts, and, in so far as material to our consideration of the case, alleges: That plaintiff and Margaret I. McNamara are the sole heirs of Mary Anne Holland, who died intestate; that at the time of her death deceased had on deposit in the Hibernia Savings Loan Society the sum of $5,633.43, which was her separate property; that sometime prior to her death, by reason of the mental incompetency of the deceased and the wrongful acts of Julia McCarthy (for whom since her decease William Kelly, as executor of her estate, has been substituted as defendant), the latter secured from deceased a written instrument authorizing a transfer of said deposit from the name and account of Mary Anne Holland to a new account in the names of "Julia McCarthy, or Mary Anne Holland, payable to either, or the survivor"; that the instrument so authorizing such transfer was procured by undue influence; that it was never signed by Mary Anne Holland nor delivered to Julia McCarthy, who wrongfully and…

Plaintiff appeals from a judgment entered after the sustaining of defendant's demurrer to the complaint and the failure of plaintiff to amend his pleading within the time allowed by the court. Upon suggestion of the death of Julia McCarthy the executor of her last will has been substituted as respondent. *Page 512 Patrick Holland sued as surviving husband of Mary Anne Holland, deceased, to quiet title to a fund deposited by said Mary Anne Holland during her lifetime in the bank of defendant, The Hibernia Savings and Loan Society. There are four counts in which it is elaborately pleaded that prior to her death Mrs. Holland, by an instrument in writing, apparently made the account payable to herself or Julia McCarthy or to the survivor; that thereafter Julia McCarthy caused the money to be transferred to another and new account in the names of "Julia McCarthy or Mary Anne Holland, payable to either or the survivor"; and that all of the original sum still remained on deposit in the said bank except five hundred dollars drawn by Julia McCarthy during the life of Mrs. Holland. There are allegations, which we need not set forth in full, to the effect that Julia McCarthy by fraud, undue…