Estate of Fanning v. Estate of Fanning
315 N.E.2d 718
Ind. Ct. App.
1974
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*1 Schnee State Schnee, that N.E.2d 186. In DeBruler stated Justice are repeal by implication statutes “only if occurs Legislature so inconsistent it must that that be assumed did not intend that remain both in force.” The offense of opium proscribed the Narcotics Act and its amendments is proscribed not inconsistent that Dangerous Drug amendments, and its Act rather offenses are identical. The is the difference statutes However, penalty imposed. applicable penalty since the pro Dangerous Drug visions of the Narcotics Act and Act were approved April 1, April 2, respectively, Legislature it must that be assumed that intended both in force. remain test,

Applying opinion Dan- the Schnee it is our gerous Drug impliedly repeal Act did not the Uniform Nar- giving Act. find no error in the of instructions nos. cotics 8 and 13. being demonstrated, error

There no reversible the trial court is affirmed. Robertson, Lowdermilk, J., P.J. and concur. Reported at 316 N.E.2d 416.

Note. — Fanning, the Matter De Estate ceased, Estate of Wildus September 3, Filed 1974.] 3-873A111. [No. *2 McAlister n &Mai-

Stephen Adair, Perry, Adair, Beers, W. Wayne, lers, appellant. for of Fort Shoup, Angola, appellee. E.

Wilson Fanning pur- intestate, she J. Before died Wildus Staton, deposit. $10,000.00 $5,000.00 certificate of chased her Both certificates made out to Wildus were daughter, Seavey, “either them with survivorship not as tenants in common.” After Wildus Fanning’s death, were her these certificates safe found deposit They box the bank. were delivered to Seavey. The Wildus estate administrators brought action for signa- stipulated court.

The facts No were agreements by the cards or had executed ture been Fanning. original the carbon bank and Wildus Both signed by copy Be- certificates were Wildus purchased she these told fore daughter care was, intention “. . to take another knowledge Seavey.” had of Marcella Marcella herself no *3 deposit they the safe the certificates before were discovered in learning Upon the said that she she box. nothing had, them, . . I’m mother “. . . . sure that done just money for me.” did not intend this the gave possession the The trial to court certificates Seavey’s appeal to this raises administrators. this issue: Seavey possession have a contractual to Did Marcella

of the after her death certificates mother’s ? Seavey a con that Marcella Our review concludes did Previous knowl possession tractual to certificates. edge indispensable a is element of not an right. possessory I, In Section II, fully, more to is discussed in Section donor-creditor, equally important, is intent of the Ind. is discussed. We overrule 174. The court’s App. 288 N.E.2d reversed.

I. Right

Contractual recognized con- inherent early As Indiana Long V. tractual Straus nature of Supreme Court 123, 124, 94, 95, our Indiana 6 N.E. wrote: em- receipt for it “This than mere instrument more a agreement. language a used creates bodies an . . The . contract, implies, contract, part of the as a law depositor upon is entitled demand reasonable

that belongs deposit of The him. receive that which back law, is one and it money is transaction well-known to a legal rights emerge; .” . . out of which well-defined resulting contract, Describing nature the essential Court continued: money, acknowledgment receipt of

“It is written and a Long v. DeVay v. promise repay a it on reasonable demand.”1 supra, Straus, Ind. at See also Dunlap (1893), Mock v. Stultz (1973), n. 30. Note, L. U. VAL. REV. deposit purchased The certificates made were contracts which RESTATEMENT a donee-bene OF defines CONTRACTS § ficiary as follows: will “(1) promise performance in Where of a . person is . person promisee, that

benefit than a (a) donee-beneficiary, the terms of appears if it accompanying promise in circum- view of the obtaining the promise purpose stances part performance promise of all or thereof is to make a to confer him 1. We note that a certificate be accorded the status *4 negotiable adopted a instrument under the Uniform Commercial Code as by 1971, 26-1-3-104; (Burns Indiana. See IC Ind. Ann. Stat. §19-3-104 1964). Eight might security It also be accorded the status of a under Article 1971, 26-1-8-102; of the Uniform Commercial Code. See IC Ind. (Burns 1964). (Michie Ann. Stat. §19-8-102 BANKS AND BANKING 1973) provides a a definition of certificate more attuned to attaining negotiable security certificate instrument or status. See Volume 5b, Chapter 9, 313 at 234-5. § neither right against performance promisor some to promisee supposed due to nor nor asserted be due beneficiary; . . . gift prom “(2) promise is ... is a Such a . .” as described Co. Surety Lumber Foster ise. Also see National A Co. 42 Ind. many party provisions contract third money time such as the interest, presentment deposit, shall remain of the rate of Badders Peoples Trust certificate for withdrawal. 357, 140 Co. certifi donee-beneficiary to know does not need right contingent contractual cate’s existence to effect a valid OF CON in the RESTATEMENT Thus, Sea seq., supra. TRACTS et § ele indispensable knowledge vey’s an was not lack of determining ment in form purchase of

Wildus contingent prasenti presented contrac here of a was a right.2 (1947), 118 v. Hibbard tual Hibbard contingent contractual App. 292, 181. This during extinguished life right could have been could have extin time of Wildus by requesting the guished contingent expressing donee-beneficiary change or bank to recog neither. Indiana contrary did intent. Wildus modify a third to rescind or nizes the a donor-creditor comprehensive statement of contract. Contracts : AM. 2d is in 17 JUR. rule found modification of contract. Rescission or “317. jurisdictions, “According the rule followed in most a third parties entered into for benefit of contract they abrogate may rescind, vary,

person the contract person, any time fit, the assent without accepted, adopted, or acted any deprives person him, the third rescission and such Ed.) 32-4-1-1; Ann. Stat. §51-104 IC ownership personal property joint where provides the status in Indiana expressed upon ownership the face of the instru- of that ment. *5 rights under This has or because for such contract. rule of applied, been pay instance, agreement in the case an of juris- another’s debts. Moreover the statutes of some provide may dictions before it is in effect that a revoked be accepted by beneficiary. see . . .” Also Zimmerman 466, Zehendner 164 Ind. 893, Ransdel v. Moore acceptance stipulated: These facts were “After death Fanning, of possession obtained of deposit, said certificates interest received $431.03 certificates, certificates, on said has cashed has Mar proceeds.” retained the interest and When accepted right given cella her to the deposit became proceeding absolute. the absence which possession, contests absolute custodian has duty to deliver the certificates. Blackard Manu Monarch’s Distributors, 514, & Inc. 131 Ind. facturers 521-22, 735, 169 N.E .2d RESTATEMENT OF CONTRACTS (1932). Hibbard, supra; Also Hibbard v. see IC (a) (Burns Ed.). 28-1-20-1 Code

II. Intent paramount importance The intent of the donor-creditor is of party beneficiary in a third contract. Voelkel v. Tohulka unique 141 N.E.2d 344. This experienced fitting device, has difficulty considerable molds, may theoretical into the common law several serve may any probation intentions. One intent be to avoid estate.3 second intent might donor-creditor’s for the device only during temporary use be for illness or absence intent A third be to use the security.4 State. device as a exemplary problem For considerations Kepner, Survivorship Concept Bank Account —A Name, Joint without a (1953); Kepner, Five More REV. 596 Years CAL. L. Joint Bank Muddle, Account CHI. L. Hines, U. REV. 376 Personal Tenancies; Law, Property More Fancy, Fact and Joint 54 MINN. L. (1970). REV. 1, supra. 4. See footnote party contrary, expression an Without presumption donee-beneficiary a rebuttable contract creates prop rights jointly incident to owned that the usual survivorship intended. was erty Miles Hanten 83 S.D. 1971, 28-1-20-1, supra, 28-4-4-2 and IC Also see IC party proof is Ed.). The burden expressed in contrary intent from that wishes to show a

who beneficiary contract. the third In Estate Huffer *6 expressed intent the stated that

126 N.E.2d given full effect: beneficiary contract will be party a third will the free Indiana that where . is settled law in “. . [I]t account, joint with bank parties to create a intent unequivocal expressed survivorship, in clear and instrument, in connection language executed in written given full effect.” account, be intention will such with the 480-481, supra, Huffer, Harvey v. Estate of by into Wildus party entered contract The third in the absence not be varied could and the bank mistake, influence, which duress or fraud, undue ex The clear by parol evidence.5 shown be give her towas pressed intent of Wildus Estate Seavey, the certificates. daughter, Marcella (1972), Mass. Blanchette supra; Blanchette v. Huffer, v. 459 III.

Conclusion Seavey’s ac- death and After Wildus only had a ceptance theory adhering jurisdictions to the contract note that 5. We antiquated parol successfully struggled with the adopted have here rule. See Repko (1972), 30 Ohio St.2d Steinhauser evidence N.E.2d (1960), 21, 167 55; Trust Ohio St. Cleveland Co. Fecteau v. 60, 181 Meilke 49 Wisc.2d N.W.2d Johnson v. 890 and N.E.2d Difficulties scope regard in this in a context outside often arise most joint generally us; was established account where the facts Gary depositor. Compare National merely of the the convenience App. 258, 279 N.E.2d 248. Sabo Bank v. was the survivor She stipulated Our review of the evidence con- the reasonable inferences not therefrom does reveal a expressed trary intent from that in the certificates. There fraud, influence, no evidence undue or mistake. duress adopted theory have the contract instead theory properly was the trial followed court in light App. 537, Only gift theory argued in Zehr Daykin, was 2d 174. accordingly.6 swpra, responded require and we The elemental gift theory ments tend to frustrate the intent of requirements particular delivery donor.7 Some of —in requirement defy juris the usual donor’s inclination. Other — adopted theory.8 impressed the contract dictions areWe apparent persuaded success of the contract theory jurisdictions. in these In re Staver 218 Wis. Johnson Meilke 260 N.W. 49 Wisc.2d Citizens Building Rhorbacker 503 and Assoc. recently, 138 Ohio St. 34 N.E.2d More Co. 751.9 Dakota, Iowa, adopted Tennessee and Texas have South theory. In re Sheimo pointed analyzed 6. For a and well criticism of the result reached Daykin, Note, (1973). the certificates in Zehr v. 8 U. VAL. L. REV. 140 7. The administrators contended in their brief that deposit permitted testamentary disposition of diana Wills in violation In *7 1971, Ed.). 29-1-5-2 Statute. See IC disagree. theory many years This is another common law which for opinion frustrated the intent of 2 the donor. See footnote of this Henry’s Practice, 2, (1954); Probate Law and Vol. at 1001 7 Blanchette 518, Blanchette 362 Mass. N.E.2d 459. 287 (1972), recognition theory 8. The initial contractual arose in the case of avoid gift theory Chippendale restrictions of inter vivos Savings (1916), other 499, v. North Adams Bank 222 Mass. 111 N.E. 371. theory adopted by jurisdictions. The was soon Deal’s See Admin Savings 297, (1917), istrator v. Merchants and Mechanic Bank 120 Va. [recently Witherspoon 91 S.E. 135 in (1965), reaffirmed Wilkinson v. 206 297, Va. 95 S.E. 802 142 S.E.2d 9, and Wisner v. 478] Wisner 82 W. Va. DeLong Building [reaffirmed v. Farmers & Loan Assoc. 625, (1964), 148 W. Va. 137 S.E.2d See also Corbin 11]. CONTRACTS (West 1951). 783§ Building 9. Rhorbacker The v. Citizens Assoc. Co. decision was based upon Scobie this Court in first prior Supreme precedent, Ohio Cleveland Trust Co. v. 241, 373; upon by 114 Ohio St. a case relied recognizing theory Harvey in Estate of App. 478, 126 N.E.2d 784. Huffer V. 681; 775, v. 261 Iowa 156 N.W.2d Miles Hanten 635, (1961), v. S.D. Melhorn Melhorn 678, 319; Peoples Baxter Tenn. Bank v. 348 S.W.2d Krueger App. v. 710, 41 Tenn. Williams 298 S.W.2d 732 Therefore, noted as 163 Tex. 359 S.W.2d supra. above, Daykin, we overrule judgment the trial court reversed. Garrard, concurs; Hoffman, C.J., opinion. J., dissents with

Dissenting Opinion majority respectfully dissent from the C.J. I Hoffman, correctly opinion for reason the trial court followed in Zehr the law stated 212. The Ind. Dec. verdict general verdict court was a and should be if it

trial affirmed ground. any (1972), 152 Hatcher v. Smith sustainable Ind. Dec. 234. Furthermore, adhere to rule of reason- I would law and supra. Daykin, ing Zehr advanced in I affirm court. would Reported at 315 N.E.2d 718. Note. — Binkley. Hendrickson

Vern Rehearing September 3, Filed denied October 1-1173A199. [No. April 28,1975.] Transfer denied