203 Mich. 556 | Mich. | 1918
Lead Opinion
(after stating the facts). SO' far as the certificate of deposit is concerned, we must hold that the court was in error, and that the property in
Touching the mortgage I think a different situation is presented. There is no testimony establishing or tending to establish a gift inter vivos or one causa mortis. This court has repeatedly held that in the absence of proof sufficient to establish either a gift inter vivos or causa mortis the survivor in case of joint title in personal property does not take the entire title by such survivorship. Wait v. Bovee, 35 Mich. 425; Luttermoser v. Zeuner, 110 Mich. 186; Burns v. Burns, 132 Mich. 441; State Bank of Croswell v. Johnson, 151 Mich. 538. These cases and others which might be cited establish to my mind the doctrine in this State that joint tenancy in personal property with its right of survivorship does not exist. I fully discussed this question in the recent case of Hart v. Hart, 201 Mich. 207, and shall not here repeat what was there fully considered.
I am impressed that under our decisions, neither by force of the language here employed or by force of the law, did the defendant as survivor of his wife take title to her interest in this mortgage. The doctrine of stare decisis, in my judgment, prevents us from holding that the defendant here takes the entire mortgage.
Wait v. Bovee, supra, was written over 40 years ago. It laid down a rule. It was a rule of property which has been followed by this court without deviation ever since. In the instant case the mortgage runs to the husband and wife “as joint tenants”; in
“Our decisions that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.”
—and held that the transaction there involved partook of the nature both of a gift inter vivos and of a gift causa mortis. In Burns v. Burns, supra, the deposit originally stood in the name of the husband; by his direction the wife’s name was added, the husband saying, “That it was as much her money as it was his money.” The money was held to belong to the husband’s estate.
I doubt that it may be said to be a matter of common knowledge that many married people iñ every community are holding their personal property in supposedly joint tenancies. I think it may be a matter of common knowledge that many of them have their savings deposited in banks payable to them or either or the survivor of them, or words of similar purport. The legislature of the State has taken cognizance of this fact and has provided a rule of evidence in such cases. Section 8040, 2 Comp. Laws 1915. But it has gone no farther. If, in legislative wisdom, it should go farther and apply such rule of evidence to personal property generally, affirmative action by that co-ordinate branch of the government should be required. This court should not reverse a rule of property which has been unquestioned for over 40 years,
I think the decree of the court below as to the certificate of deposit should be reversed, and as to the mortgage should be affirmed. Plaintiff should have his costs in this court, but neither party should recover costs of the hearing at the circuit.
Dissenting Opinion
{dissenting). I am in accord with 'Mr. Justice Fellows’ conclusion in this case that the certificate of deposit is the sole property of the plaintiff, but I am unable to subscribe to his conclusion that plaintiff owns only an undivided half of the mortgage. It is my opinion that upon the death of his wife the plaintiff, as survivor, became the sole owner of both the bank deposit and mortgage.
The common law recognized joint tenancy in both real' and personal property. 1 Cooley’s Blackstone (4th Ed.), pp. 180, 399. At common law when a conveyance was made of either real or personal property to two or more persons, it was construed to be in joint tenancy and it was, therefore, necessary in creating an estate in common to use some words indicating such an intention. Pruden v. Paxton, 79 N. C. 446; 38 Cyc. p. 5. Early in the history of our jurisprudence the legislature reversed this rule as to real estate and provided that a conveyance of real estate to two or more persons should be construed as an estate in common unless expressly declared to be in joint tenancy. And this is the law today. Section 11562, 3 Comp. Laws 1915. Analogous to this legislative rule with reference to real property this court promulgated a like rule with reference to personal property and
“Mortgage, ordinary form, given by Fairview Land Company April 12, 1893, consideration $15,470, to Carl Frederick Zeuner and Johanna Rebecca Zeuner, on 19.47 acres of land in Springwells, Wayne County, Michigan.” R. & B., June Term, 1896, Docket No. 8, p. 20.
Inasmuch as the question of joint tenancy was involved in those cases I assume if there had been any language of the parties indicating that the mortgage was to be held in joint tenancy, it would have appeared in the record. No case of this court has been called to our attention where it has refused to recognize the right of parties to make such an agreement if they chose, and it has enforced such conveyances of personal property where it was clear from the instrument that it was intended to be owned in joint tenancy. An illustration of this is the late case of Negaunee National Bank v. Le Beau, 195 Mich. 502. In this case a father made' a deposit in a bank for himself and his daughter. The deposit appeared upon the books of the bank in the following form:
*563 “The sum deposited to this account belongs to
Signature: “Euchrist Le Beau,
“Sophia Charles,
jointly: it being understood each may withdraw on his or her individual order during their joint lives, and that any balance upon the death of either shall belong to the survivor.
(Signed) “Euchrist Le Beau,
(Signed) “Mrs. Ed. Charles.”
The right of the daughter as survivor to take the deposit after the death of her father was contested, and upon reaching this court it was said:
“In this case it is not necessary to predicate determination upon the fact that the passbook prior to the death of Euchrist Le Beau was in possession of the donee and to draw an inference from that possession that the same was given to her in his lifetime with the intention of giving her the fund represented thereby. He had already given her the fund by his unequivocal act at the moment the deposit was made.”
An attempt was made to sustain the right of the survivor to take the deposit by force of the provisions-of Act No. 248, Pub. Acts 1909, but opposing counsel questioned the constitutionality of that act. The court, however, laid aside this argument, saying:
“It is asserted by appellant that said statute, if applicable, is unconstitutional for various reasons assigned. Without casting any doubt upbn the validity of the legislation in question and following our usual practice, we decline to construe this phase of the question, being able to reach a determination of the issue involved upon other grounds.”
The right of the survivor to take the deposit was sustained and upon no other theory than that she was a joint tenant with her father and took the deposit as survivor. The daughter stood in the same relation to the deposit that plaintiff does to the mortgage in question. If the entire deposit was hers as survivor the plaintiff is sole owner of the mortgage as survivor. See In re Rehfeld’s Estate, 198 Mich. 249.
In other States where the common-law rule has been abrogated, as here, joint tenancy with its incident of survivorship is recognized where the parties themselves have provided for it. Joint tenancy has been abolished in the State of Georgia, but it is held that the doctrine will be recognized where it is created by act of the parties. In the case of Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (62 L. R. A. 93, 44 S. E. 320), where a like question is discussed, it is said:
“While the doctrine of survivorship as applied to joint tenancies has been distinctly abolished and does not exist in this State, there is no law of this State that we are aware of which prevents parties to a contract, or a testator in his will, from expressly providing that an interest in property shall be dependent upon survivorship. Of course, all presumptions are against such an intention; but where the contract or will provides, either in express terms or by necessary impli*565 cation, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such a doctrine may not become operative under the laws of this State. * * * In Georgia the mere creation of the estate in two or more persons never draws to it survivor-ship as an incident, and the presumption is in all cases that survivorship was not intended. But where, by express terms or necessary implication, a survivor-ship is provided for, the law of Georgia allows it to exist. This exact question has been passed upon in other States having statutes abolishing the doctrine of survivorship as applied to joint tenancies.. In Arnold v. Jack’s Ex’rs, 24 Pa. St. 57, the supreme court of Pennsylvania held that, though survivorship as an incident to joint tenancies had been abolished in that State, it might be expressly provided for by will or deed; Knox, J., in the opinion saying:
“ ‘But conceding that the right of survivorship as an incident of a joint tenancy, no matter how created, is gone, it by no means follows that this right may not be expressly given, either by a devise in a will or by grant in a deed of conveyance. It may cease to exist as an incident and yet be legally created as a principal.’ Citing authorities.
“In the case of Taylor v. Smith, 116 N. C. 581 (21 S. E. 202), the supreme court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the right of the parties dependent on survivorship. In the opinion Avery, J., said:
“ ‘The act of 1784 abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written contracts as to land, or verbal agreements as to personalty, such as to make the future rights of the parties depend upon the fact of survivorship.’ ”
I think the decree should be reversed and plaintiff should be declared to be the sole owner of the bank deposit and mortgag’e. See, also, 17 Am. & Eng. Enc. Law (2d Ed.), p. 650, and cases cited. Plaintiff is entitled to his costs in this court.