194 Mich. 151 | Mich. | 1916
(after stating the facts). .Nothing can be predicated by either party upon what was said or was done with respect to the account after the death of Mrs. Lake. This ruling is not rested upon the alleged incompetency of any witness to testify, but upon the ground that no new contract was made by the bank after her death, and no particular existing contract was recognized by merely making the conditional change in the account upon the books of the bank. The rights of the parties must be determined as of the date of Mrs. Lake’s demise, in view of any evidence which tends to prove the contract between the bank and the depositor and the actual relations existing between Mr.
“As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, where a contract is not in writing, it is equally clear that its real character and terms may be made out by testimony, and that the contracting party can lawfully control his own funds until he has disposed of them, and that it can make no difference in what name the account is kept, if it is understood to be his account, and has not been put beyond his control by some act which he cannot revoke.”
The question to be decided is a question of fact, and '.is to whom the money belonged, to Mr. or Mrs. Lake, 1 or to both of them. The competent evidence is meager.
The case stands, then, in this way: It appears that Mrs. Lake was the creditor of the complainant bank, having the right, when she died, to dispose of this fund. It is presumed that Mr. Lake had knowledge of this condition of affairs. The burden is upon his representative to prove that in fact the fund was his, or was a joint fund, title to which passed to him upon the death of Mrs. Lake. In my opinion, he has not sustained this contention, and, therefore the decree must be, and is, affirmed, with costs to appellee.