214 Wis. 27 | Wis. | 1934
The first and second causes of action are to recover from Emma Voigt $1,689.58 and $6,045.68, respectively, which were withdrawn by her in January and February, 1929, from the First Wisconsin National Bank, with which they were on deposit in two savings accounts in the names of “Herman or Emma Voigt.” Emma Voigt was the surviving wife of Herman Voigt, deceased. He had opened the first account on July 16, 1926, by a deposit of $500 of his money, which at his direction was entered in a
“We hereby agree to the rules and regulations as set forth in the savings pass-book and all subsequent amendments thereto. The money now and hereafter deposited is owned, jointly, by the persons named and is subject to the order of either; the balance at death of either to belong to the survivor.”
On the other card there was the following:
“The deposits now or hereafter made to the account of the undersigned, whether made by them jointly or severally, are hereby declared to be their joint property, payable to either of them during their joint lives, and to the survivor on the death of the other.”
“Deposits and accumulated interest, if any, may be withdrawn only by the depositor personally, or by his written order, or by his attorney in fact duly authorized so to do, by an instrument in writing properly executed and authenticated, and upon the production of his deposit book in which said payment shall be entered; but no money shall be paid on account of said deposit unless the depositor’s book be produced, in order that such payments may be entered therein, unless the depositor shall prove to the satisfaction of this bank that such book has been lost, stolen, or destroyed, and in such case a duplicate book may be issued provided the depositor furnishes a bond or other indemnity satisfactory to this bank against all loss or damage on account of such payment without such book.”
Herman Voigt and his wife signed those cards at their residence and he delivered them at the bank.
On the trial of this action defendant testified that, when she signed the cards, her husband said, “I am giving you
The court found that when the deceased had the deposits entered in the names of “Herman Voigt and Emma Voigt,” and filed the signature cards, the accounts were carried in the joint names of defendant and deceased solely for his own convenience in handling the fund, in order that the defendant, with the permission of the deceased, might withdraw the funds for and in his behalf without presenting to the bank evidence in writing of the right to make such withdrawal ; that at the time such deposits were made and entered in the names of Herman Voigt or Emma Voigt, and the signature cards were filed, he did not intend to give the defendant any part of the money so deposited, nor did he intend to vest in her any right, title, or interest in the fund other than the right to make withdrawals therefrom with the permission of the deceased solely for the convenience of deceased in handling the funds. The court concluded that Herman Voigt made no gift to the defendant of any present interest in the deposits, and that there was not at the time of the creation of the accounts at the bank, or at any time thereafter, a joint tenancy created in said funds; that title to said funds was at all times in him up to the date of his death, and upon his death passed to his administrator with the will annexed; and that it was entitled to recover the amount thereof in this action.
The foregoing findings are supported by the facts and circumstances established on the trial as to the manner in which Herman Voigt kept the pass-books in his exclusive possession and control, and in which he alone attended to all transactions at the bank and disposed of such funds as were withdrawn until the defendant, upon her husband’s becoming incapacitated, surreptitiously deprived him of the books.and
Under the printed provisions on the cards, whereby each signer expressly agreed to the rules and regulations of the bank, as set forth in the pass-books, which constituted part of the depositor’s contracts with the bank, no money was to be paid on account of such deposit unless the pass-book was produced at the bank. As there never was a voluntary delivery of those pass-books by the deceased to the defendant, in so far as the actual, lawful possession of the pass-books in her own right affords any criterion, there never was a completed gift of those deposits to the defendant. In Dupont v. Jonet, 165 Wis. 554, 162 N. W. 664, this court said:
“Many authorities are cited by appellants to the effect that a deposit of money by one person in a bank on a pass-book or certificate of deposit in his own name and that of another jointly is not a completed gift of any part of the money so deposited so long as the depositor retains entire control of the pass-book or certificate of deposit. They will be found cited in the notes in 20 Cyc. 1204, 1205.”
Under the rule thus recognized, the retention by a depositor, or other owner of a chose in action, of the exclusive possession and control of his documentary evidence thereof and of his- ownership thereof, is of crucial significance in determining whether there has been a completed gift, even though the documents were issued in the name of another at the owner’s directions. Tobin v. Tobin, 139 Wis. 494, 121 N. W. 144; Breitenbach v. Schoen, 183 Wis. 589, 198 N. W. 622. The failure to adhere to that rule has resulted in conflicting decisions in some jurisdictions in which
On the third cause of action plaintiff recovered $685 and interest which the court found belonged to and were in the possession of Herman Voigt in January, 1929, but were, without his knowledge, converted by the defendant to her own use on January 17, 1929, by depositing the same in a bank in a checking account in the name of herself and her daughter; and that no part thereof has been turned over to the plaintiff. The court’s findings are not materially in conflict with a finding proposed by the defendant, that “said moneys were the sole property of the deceased and that the title thereto passed, upon his death, to the personal representative of his estate;” and the recovery thereof by plaintiff is in accord with a conclusion of law proposed by defendant', that the plaintiff is entitled to judgment against her for that sum. However, on this appeal defendant for the first time contends that the court should have allowed the defendant'an equitable setoff for disbursements which she claims to have made for the benefit of the deceased and his estate. That contention cannot be entertained at this time, in view of the findings and conclusions of law proposed by the defendant in the trial court. Sec. 270.39, Stats., provides (in part) that:
“Any party who expressly requests any finding of fact, conclusion of law, instruction to the jury or ruling or order shall not be heard to question its correctness on appeal.”
It is well established that, generally, no error will be considered on appeal which was not assigned or presented to the trial court. Roseliep v. Herro, 206 Wis. 256, 239 N. W. 413. In this case there was not even any counterclaim or pleading asserting any right to'a setoff. Nevertheless, the court by an express provision in the judgment undertook to
By the Court. — Judgment affirmed.