152 P.2d 573 | Or. | 1944
Proceeding by Harriet Holbrook for the allowance of a claim to a joint deposit in a savings bank against the estate of Pauline Hendricks, deceased. From an adverse judgment, Alfred W. Hendricks, administrator of the estate, appeals.
AFFIRMED. This case presents a question in the law of joint bank deposits not heretofore directly and explicitly passed on by this court. We are called upon to determine *161 whether or not the language of a written agreement with a savings bank, signed by both the depositors at the time the account was opened, in form providing that moneys deposited to the credit of the account shall be payable to either of the depositors or to the survivor of them, conclusively establishes and defines the title of the respective parties to the moneys in the account; or whether extrinsic evidence may be received for the purpose of showing the real transaction and the actual ownership.
The agreement in question, so far as material, reads as follows:
"JOINT ACCOUNT WITH THE FIRST NATIONAL BANK OF PORTLAND, ORE.
"Savings Account No. 33997 Date Jan. 20, 1933
"Name Mrs. H. Holbrook or ________________________
"In opening this joint account and in consideration of the acceptance thereof by THE FIRST NATIONAL BANK OF PORTLAND, OREGON, the undersigned agrees:
"(1) That all moneys now or at any time deposited by us or either of us or for either of us with the First National Bank, Portland, Oregon, to the credit of the above account, are and shall be so deposited by us and received by it upon the following terms and conditions of repayment, namely: that the amount thereof and all dividends thereon shall be paid by the said First National Bank to us, or either of us, or to the survivor of us, or to the executors, administrators or assigns of such survivor; or upon the written order of any such person so entitled to payment, when accompanied by the Savings Pass Book issued for the above account *162 and without reference to the original ownership of the moneys deposited. * * *
"Mrs. H. Holbrook "JOINT ACCOUNT "Pauline Hendricks"
The passbook was delivered to Pauline Hendricks when the account was opened and retained by her until her death on January 24, 1943.
The depositors, Harriet Holbrook, the claimant in this proceeding, and Pauline Hendricks, now deceased, were sisters, and the case arises on a claim of Harriet Holbrook against the administrator of the estate of her deceased sister to recover moneys withdrawn from the account by the latter during her lifetime. Over defendant's objections evidence was received tending to show that all the moneys in the joint account were the proceeds of rent of a house owned by Harriet Holbrook and collected for her by Pauline Hendricks as agent, and by the latter deposited in their joint names in the First National Bank of Portland merely as a matter of convenience to the claimant and without any intention to transfer an interest in such moneys to her deceased sister. The defendant has appealed from an adverse judgment.
In a consideration of the authorities, we may, at the outset, lay to one side cases in which the parties to a joint bank account have signed a writing declaring that they are "joint owners" or "joint tenants" of the moneys deposited in the account. Where these or words of similar import have been used, it has been held that the form of agreement conclusively establishes the right of the survivor to the balance in the account and that parol evidence may not be admitted for the purpose of showing that one of the parties had in *163
fact no interest in the fund and that the transaction was resorted to merely to serve the convenience of the true owner.Matthew v. Moncrief, 77 App. (D.C.) 221,
There would seem to be a difference between the legal effect of such an agreement and one which contains no express words of joint ownership. We so suggested in Beach v. Holland,
There are other cases involving contracts containing words of joint ownership in which, while the right of the survivor to the balance in the account was determined entirely on the basis of the language used in the agreement, no attempt seems to have been made to introduce extrinsic evidence to explain the transaction, *165
and the admissibility of such evidence was not discussed. SeeMader v. Stemler,
In some states the problem has been settled by legislation. The first statute on the subject was enacted in New York, and has been construed by the Court of Appeals of that state as follows:
"When a bank account is opened in the form prescribed by statute (Banking Law, § 249, subd. 3), (i.e., a deposit "made by any person in the names of such depositor and another person and in form to be paid to either or the survivor of them") a presumption at once arises that the interest of the depositors is that of joint tenants. Upon the death of one of the depositors, this presumption becomes conclusive in favor of the survivor in respect of any moneys then left in the account. It continues to be a mere presumption in respect of any moneys previously withdrawn." Marrow v. Moskowitz,
255 N.Y. 219 ,221 ,174 N.E. 460 .
Similar statutes adopted in California, Michigan and Missouri have received a like construction: Ambruster v. Ambruster,
We are not dealing in this case with a form of deposit agreement in which the parties to a joint account have expressly declared that they are "joint owners" or "joint tenants", or that the moneys credited to the account "belong to" them jointly, and we have no occasion to express an opinion as to the effect of the use of such expressions. Nor is there any statute in this state which fixes the rights, as between themselves, of joint depositors in a savings bank account. The deposit here was made subject to the condition, assented to in writing by both depositors, "that the amount thereof and all dividends thereon shall be paid by the said First National Bank to us, or either of us, or to the survivor of us, or to the executors, administrators or assigns of such survivor"; and the question is whether this form of agreement is so clear, unambiguous and conclusive as to shut off all inquiry as to the real ownership of the money and, by the mere force of its provisions, establish in each of the joint depositors an interest in the fund.
We think that an affirmative answer to that question would be contrary to the better reasoning and the decided weight of authority. The most that can be said is that the words of this deposit agreement are some evidence of the intention on the part of Harriet Holbrook to transfer an interest in the account to her sister. Speaking of a similar agreement in Beach v. Holland, supra, 172 Or. at p. 412, we said "The provision in the contract giving to the plaintiff the right of withdrawal is evidence of the intent of the deceased to make a present gift"; though even upon that proposition the courts are not in entire agreement. *167
Thus, in Flanagan v. Nash, 185 Pa. St. 41, 39 A. 818, a provision giving the survivor the right to draw was said to confer that right and nothing more. "There is nothing to show", the court said, "that if the defendant withdrew the money he could keep it as his own." In Denigan v. Hibernia Savings andLoan Society,
"The form in which the deposit was made is entirely consistent with a desire on the part of the wife to give to her husband authority to withdraw money from the bank from time to time as she might need it, and it should not be held that she intended to part with her title thereto by reason of an ambiguous phrase, which is quite consistent with a contrary purpose."
In Green v. Comer, (Okla.),
*168"However, the more general and we believe the better view is that such additional language is a circumstance to be considered in conjunction with the relationship of the parties and other circumstances in the case. Its weight as a circumstance may vary greatly with the different relationship between the co-depositors. It may correspond to the arrangement between the parties or it may be solely for the convenience and protection of the bank and as such constitute an agreement between the depositors and the bank as distinguished from a contract between the depositors. Of course, different considerations apply to a contract strictly between the depositors and a form prepared by the bank may be used by depositors as a means of carrying out their arrangements."
Again, in Taylor v. Coriell,
"In view of the well-known practice of savings banks to pay money on the presentation by the depositor in person of his or her pass-book, the motive of convenience in drawing money without personal attendance becomes at once prominent and a not uncommon purpose in the placing of moneys in bank to joint account."
In Kelly v. Beers,
Notwithstanding the authorities to the contrary, we adhere to the view expressed in Beach v. Holland, supra, that the agreement itself is some evidence of an intention on the part of the owner of the money deposited to make a gift of a joint interest in the account, and that if nothing more were shown than the deposit agreement itself, that would suffice to make out aprima facie case in favor of one asserting such an interest. See Raferty v. Reilly,
We think the fair inference arising from the power given to each of the parties to draw on the account *170 — expressed in the present instance by the words "shall be paid" — is that an interest in the fund was created by the original owner of the moneys deposited in favor of her co-depositor, but that this inference "is a weak one and readily yields to parol proof of the real intention of the parties." Ambruster v.Ambruster, supra. The difficult question of the right to follow funds withdrawn during the lifetime of both parties, where the fact of a gift has been established, discussed in the case just cited and in the annotation thereto at 77 A.L.R. 799, is not here presented.
The right to introduce extrinsic evidence in order to determine the intent of the parties and the realities of the transaction follows, we think, from the dubious character of the deposit agreement, and is sustained, as we have said, by the weight of authority. If, as some courts have held, such evidence may be received to overcome the apparent meaning of agreements in which the parties declare themselves joint owners or joint tenants, for a much stronger reason should that be the rule where the agreement merely provides that the moneys deposited to the credit of the account shall be payable to either of the joint depositors or to the survivor of them. And by most of the courts that have dealt with the question in cases involving agreements of the latter type, that has been the governing principle. In not all the cases taking this view does it definitely appear that both parties signed the deposit agreement, but the rationale of the decisions, namely, the want of conclusiveness in the words of the agreement itself, warrants the statement, we think, that the failure of one of the parties to sign the agreement was not in any of these cases deemed a decisive factor. See, Raferty v.Reilly, supra; Commercial Trust Co. v. White, supra; *171 Rauhut v. Reinhart,
A different opinion has been expressed in Illinois Trust Savings Bank v. Van Vlack,
While there is language in the opinion in the case of In reEdwards' Estate,
It remains only to say that uncontradicted evidence, sufficiently corroborated, shows that the moneys deposited in this account were all the proceeds of rent of a house in the city of Portland owned by the claimant; that the deceased collected these rents as the agent of the claimant, and not otherwise, and deposited them in the account pursuant to an arrangement between the parties made for the convenience of the claimant, who lived and was engaged in business some distance from the city of Portland; that there was no intention on the part of the claimant to transfer any interest in the deposit to her sister, and the latter never acquired an interest therein, but withdrew and misappropriated the larger part of the moneys so deposited without the claimant's knowledge. Complaint is made by the defendant of the amount of the judgment; but there is no assignment of error in that regard, nor was the question presented to the trial court by motion, request for findings, or otherwise. The point, therefore, cannot be considered by us. We think, moreover, that if any one has the right to complain as to the amount awarded, it is the claimant, for the court held that the statute of limitations barred her right of *173 recovery as to sums withdrawn more than six years before the commencement of the action. This we think was error, for the deceased was in the position of a trustee for her sister, who knew nothing of the misappropriations of the moneys until after the former's death; and the statute would not begin to run until after a demand and refusal to pay. See 34 Am. Jur., Limitation of Actions 145, § 180. The claimant, however, has not appealed, and we are unable, therefore, to correct the error.
Nor do we find any merit in the contention that the recovery is not based on the claim as presented. The essential facts which would support a judgment are stated in the claim; and the fact that counsel for the claimant, or the court below, may have entertained an erroneous legal theory as to the ground of liability is immaterial.
The judgment is affirmed. *174