Thе only question presented by this action is whether certain bank deposits, represented by time certificates of deposit, payable to either of the two persons named, belong solely to the survivor of the two or is the property of the estate of the deceased, who had made the original deposit.
Carl M. Johnson and Margaret E. Johnson were husband and wife and resided in Omaha. Johnson made several time desposits in four banks, for which he received from the respective banks the usual certificates of deposit, the payment obligation of each differed somewhat in their terms. There were ten separate deposits and a like number of certificates. Those issued by three of the banks provided for payments “to the order of self or Margaret E. Johnson,” upon return of the certificates properly indorsed, and one of this class contained the additional clause, ‘‘‘subject to the order of either, or the survivor.” The certificate of one bank states “Carl M. Johnsоn or Margaret E. Johnson have deposited in this bank exactly $1,500 * * * payable to either of them,” etc. Johnson placed all the certificates in his safety deposit box in a trust company vault. Johnson had two keys to the deposit box. One of these he kept at home and to> which both he and his wife had access at аny time, and Johnson, according to the wife’s testimony, had told her the certificates were in the deposit box, though she had never signed the card at the trust company which would entitle her to open the box. Johnson left no will, and upon his death his wife was appointed administratrix of the estate, and as such opened the deposit box, when all of the certificates were found. Mrs. Johnson claimed the funds as her sole property. The appellants, in this court, who are brothers and sisters of Johnson, claim the certificates, and funds represented, are property belonging to the state. The probate court held in favor of the appellants, and, on appeal,’ the
Appellants, who were plaintiffs in the lower court, appeal, and the question here presented is whether, under these circumstances, the certificates belong solely to Mrs. Johnson, as survivor, either by way of a gift or as a joint tenant with the right of survivorship, or by virtue of the provisions of section 8046, Comp. St. 1922.
Counsel on both sides, argued that the question had never before been decided in this state, strenuously urged the importance of the questions involved, and by exhaustive briefs cited a great many adjudicated cases in other jurisdictions. In pursuance to these briefs and arguments, we have read, studied and analyzed the cases cited, and, also, many others, when we find this" court has recently decided a case very similar to the. one at bar. In re Estate of Kamrath,
Questions involving the same general problems have been decided in a multitude of cases in other jurisdictions. The facts and circumstances of no two are exactly alike. In McLeod v. Hennepin County Savings Bank,
In those cases in which the question is disposed of on thе gift theory a long technical discussion is engaged in as to whether or not there could be a delivery sufficient to meet the common-law requirement of a gift where the donor retained possession of the certificate of deposit or the passbook"; also, where the donee does not sign the deposit сard
In the case of In re Estate of Kamrath,
“As betweеn Wilhelm Kamrath and Mary Hodges as well as the world it was not necessary for Kamrath to indorse the certificate of deposit, it being payable to ‘himself or Mary Hodges.’ Either party was authorized to negotiate and transfer the same by his own indorsement. * * * Nor did the reservation of the interest by Wilhelm Kamrath prevent the consummation of the gift and the vesting of*690 the title in the donee. * * * So, too, it cannot be said that, because certificate No. 9272 was found after the death of Wilhelm Kamrath in the safety deposit box owned by him, it necessarily negatived the right of Mary Hodges to the principal sum evidenced thereby. The gift had been fully executed and the titlе vested before the death of Kamrath. The terms of the gift imported the right in him to collect the interest thereon, which fact made his possession of the certificate wholly consistent with the title of the principal as being in Mary Hodges.”
We think the foregoing case is controlling of the case at bar except that some may make the distinction that in that case Mary, the donee, at one time, apparently, for just a moment, had the certificate of deposit in her own hands. If that phase of the case is and was controlling, it is not easily distinguished — that circumstance — from the circumstances of the instant case in which Mrs. Johnson said in her tеstimony that, while she never had physical possession of the certificates, there were two keys to her husband’s safety deposit box, one of which she kept, and that her husband had told her thé certificates were in the box.
Johnson’s business partner and one or two of his employees also testified to the effect that he had told them he had made these deposits so either he or his wife could draw the money on them. It seems to me that, where the husband had told the wife the certificates were in the box, even though she was not, under the rules of the deposit company, permitted to open the box, there was just as much a completed delivery and gift as there was in the Kamrath case. Delivery may be either manual, constructive, or symbolical. 28 C. J. 636. And, too, the circumstances of the relationship of Carl M. Johnson and his wife were such as to compel one to think that it was his intention to give her, at that time, such an interest in this money as would entitle her to payment of the certificates. As was well said in the Kamrath case, either person named in the certificate could cash it by his own
It was argued by counsel for the appellant that the use of the word “or” was conclusive as against the wife, and suggested that, had the word “and” been used, it might have hаd a different meaning. We think just the reverse of that argument. Had he used the word “and,” he would have had an interest in the nature of a tenant in common and it would have required the indorsement of both the donor and donee.
Johnson left no children. When he deposited this money in these banks he undoubtedly intended that his wife should have a beneficial interest in the money, and that no other person should have. If he had intended otherwise, it would have been a far easier matter to have left the bank officials name him, alone, as the payee, which undoubtedly would have been done, in the absence of an affirmative request, on his part, to the contrаry. We hold, therefore, that there was a. completed, executed gift of whatever remained in this deposit to Mrs. Carl M. Johnson. Massachusetts and New Jersey hold that joint deposit cases are matters of contract between banks and persons named in the certificates or passbooks.
“Nor can the fact that the contract leaves Mrs. Kaufman (donor) with power, or some power, of disposition of the debt due from the bank be of any controlling materiality.” Kaufman v. Edwards, 92 N. J. Eq. 554.
“In such case it is not necessary to establish the existence of a technical joint tenancy to create the right of survivor-ship; in other words, the incident of survivorship which exists by implication in a joint tenancy is expressly provided for by such a form of deposit.” New Jersey Title Guarantee & Trust Co. v. Archibald, supra.
Massachusetts holds that the act of mаking the deposit in a joint account is a completed transaction. In a note to Chippendale v. North Adams Savings Bank,
“It thus appears clear that the Massachusetts court has not abandoned the general rule that the effect to be given a joint tenancy in a bank account depends upon the intention of the donor. The extent to which the decisions of this court can be said to have gone is that the creation of a ‘joint tenancy,’ or a deposit in this form, is such a delivery as completes the execution of the gift. * * * The delivery which must accompany an ordinary gift is rendered unnecessary by the contract by which the bank becomes obligated to both donor and donee.” See, also, Perry v. Leveroni,252 Mass. 390 , and Kelly v. Snow,185 Mass. 288 .
The act of the deposit itself is sufficient if there is a donative intent. Kaufman v. Edwards, 92 N. J. Eq. 554.
The certificates issued by the Omaha National Bank, Nos. 92,908 and 92,909, both expressly provided payment to either or the survivor. Of these there can be no question but that they belong solely to Mrs. Johnson. Those issued by the United States National Bank exрressly stated “Carl M. or Margaret Johnson have deposited,” etc., “payable to either.” While it may be conceded the husband in fact made the deposit, he certainly, by that deposit, gave his wife an indivisible and unseverable interest in the deposit. It must, therefore, be an interest in the nature of a joint tenancy with the attendant right of survivorship. The deposits in the First National Bank and the State Bank were payable to either the husband or wife, but we think the same principles and reasoning above set forth equally applies to these deposits.
It is argued pro and con that section 8046, Comp. St. 1922, fixes the property rights of the persons named in а joint deposit, and is not merely for the protection of the bank. This section is contained in the chapter entitled “Banks” and provides: “When a deposit in any bank in this state is made in the name of two or more persons deliverable or payable to either or to their survivor or survivors, such deposit or any part therеof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business.”
The same question arose in that state in In re Rehfeld’s Estate,
The judgment of the district court was right, and it is
Affirmed.