Agrelius v. Mohesky

• Decision Date: 04 March 1972
• Docket Number: No. 46237,46237
• Citation: 208 Kan. 790,494 P.2d 1095
• Parties: Clair AGRELIUS, Appellant, v. Mary Jo MOHESKY et al., Appellees.
• Court: Kansas Supreme Court

Page 1095

494 P.2d 1095

208 Kan. 790

Clair AGRELIUS, Appellant, v. Mary Jo MOHESKY et al., Appellees.

No. 46237.

Supreme Court of Kansas.

March 4, 1972.

Syllabus by the Court

1. The rules relating to the cretion of joint tenancy bank accounts are applicable as well to joint tenancy accounts in savings and loan associations.

2. Whether a joint tenancy savings account in a savings and loan association has been created between a depositor and another is to be determined on general contract principles.

3. Where a depositor executes a signature card containing among its provisions an agreement in clear and unambiguous language that an estate in joint tenancy

with rights of survivorship is intended, then such an estate is created and the agreement is enforceable according to its terms.

4. In establishing a joint tenancy the all-important factor is the clarity with which the intent of the grantor is expressed at the time the transaction is initiated.

5. Where the signature card employs the so-called 'magic' words commonly regarded as creating a joint tenancy the intention is clear and unambiguous and parol evidence is inadmissible to explain or vary its terms in the absence of fraud or mutual mistake on the part of depositor and depositee.

6. Before a deed can operate as a valid transfer of title it must have been delivered effectively during the lifetime of the grantor.

7. Delivery is largely a matter of the grantor's intention as evidenced by all the facts and circumstances surrounding the entire transaction, and where the grantor by words or acts manifests a present intent to divest himself of title and to vest it in another, it is sufficient to constitute a delivery.

8. Intention is often the determining factor on the issue of delivery and may be the crucial test where reliance is placed on constructive delivery.

Richard Mankin, Emporia, argued the cause, and Roscoe W. Graves, Emporia, was with him on brief for appellant.

John G. Atherton, Emporia, argued the cause and was on brief for appellees.

FONTRON, Justice:

We are confronted with two separate issues in this lawsuit. The first is whether a savings account was held in joint tenancy. The second question is whether a deed to a Harvey County farm was delivered during the lives of the grantors. The district court decided each issue adversely to the plaintiff and he has appealed.

Frank U. G. Agrelius and his wife, Elizabeth T. Agrelius, were residents of Emporia, Kansas. They has two sons, Clair Agrelius, who is the plaintiff and appellant in this lawsuit and Paul Kenneth Agrelius, commonly known as kenneth. They will frequently be referred to as Clair and Kenneth. Mr. and Mrs. Agrelius both died intestate, Mr. Agrelius in February 1962, and his wife, in April 1967. Kenneth died February 7, 1967, some two months before his mother. He left five children who are the defendants and appellees in this action. With this brief statement as to the parties, we turn to the first issue-the status of the savings account.

At the time of the death of Mr. Agrelius, he had Mrs. Agrelius had a joint tenancy savings account in the Eureka Federal Savings and Loan Association, containing a balance of some $10,000. A few days after Mr. Agrelius died this balance was transferred to a new savings account which was opened in the name of Mrs. Elizbeth Agrelius and C. T. Agrelius (Clair) as joint tenants with right of survivorship and not as tenants in common.

The trial court ruled that this savings account was not a joint tenancy account but was established for the sole convenience of Mrs. Agrelius. We believe the court erred in this holding.

The law with respect to joint tenancy bank accounts in this jurisdiction has been spelled out by this court over a number of years and we believe the legal principles which apply to them apply also to joint accounts in savings and loan institutions. Basically, our decisions recognize the principle that whether a joint tenancy has been created between a depositor and another person is to be determined on general contract principles, and where a depositor executes a signature card containing among its provisions an agreement in clear and unambiguous language that an estate in joint tenancy with rights of survivorship is intended, then such an estate is created and the agreement is enforceable according to its terms. (Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P.2d 139; In re Estate of Smith, 199 Kan. 89, 427 P.2d 443; In re Estate of Johnson, 202 Kan. 684, 452 P.2d 286; Edwards v. Ledford, 201 Kan. 518, 441 P.2d 834.

Specifically, we have held that where the signature card contains the so-called 'magic words' commonly regarded as creating a joint tenancy, i. e., 'as joint tenants with right of survivorship, and not as tenants in common' the intention is clear and unambiguous and parol evidence is not admissible to explain or vary the terms of the written contract in the absence of fraud or mutual mistake. (In re Estate of Smith, supra; Simonich, Executrix v. Wilt, supra.)

The signature card signed by Mrs. Agrelius and Clair when the proceeds from the prior joint tenancy account were transferred to the new account reads in pertinent part:

Account No. 16699

'(1) Agrelius, Mrs. Elizabeth Trans from #5,268

'(2) Agrelius, C. T.

'The Undersigned hereby apply for a membership and for a _ _ share account in the Eureka Federal Savings and Loan Association, Eureka, Kansas, and for the issuance of evidence of membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common. . . .'

(Emphasis supplied.)

The certificate which is contained in the passbook issued to Mrs. Agrelius and C. T. Agrelius (Clair) reads as follows:

'THIS CERTIFIES THAT:

'Mrs. Elizabeth Agrelius and C. T. Agrelius as joint tenants with right of survivorship and not as tenants in common, hold a Savings Account representing share interests in Eureka Federal Savings and Loan Association subject to its charter and by-laws, the Rules and Regulations for the Federal Savings and Loan System and to the laws of the United States of America. (Emphasis supplied.)

'WITNESS the authorized signature of officer or employee this 23rd day of February, 1962.

Eureka Federal Savings and Loan

Association

By /s/ Maxine Edgell

Authorized Signature'

As we view these documents, the present case is not distinguishable from the Smith and Simonich cases. The same 'magic' words appear on the signature card. The signature card was signed by Mrs. Agrelius, the depositor whose funds provided the sole basis of this account. It was also signed by Clair for the protection of the association.

The trial court, in its memorandum, observed there was no testimony to show that any explanation was given to Mrs. Agrelius and Clair concerning the legal significance of a joint account. Mrs. Agrelius of course is no longer here to testify as to what she was told when she transferred the account or as to what she knew about a joint tenancy savings account, but it would be presumptuous to say she was unfamiliar with the legal aspects of joint tenancy. She and Mr. Agrelius possessed a joint tenancy savings account during his lifetime and this had passed to her upon her husband's death. She was certainly no stranger to joint tenancy accounts at the time she transferred the funds from the former joint tenancy account with her husband, which was served by death, to the newly created joint tenancy account with Clair. She had experienced not only the creation of such an account, but the termination of one, as well.

The defendants frankly recognize the authority of our previous cases in the area of joint tenancy bank accounts. They say in their brief:

'It is recognized that the signature card is a plain and unambiguous written contract and that in the absence of pleading and proof of some species of fraud or mutual mistake in the procuring of the signature of Elizabeth or Clair to it, the contract creating the joint tenancy must stand. (Edwards v. Ledford, 201 Kan. 518, 525, 441 P.2d 834; In re Estate of Smith, supra (199 Kan.) 95 (427 P.2d 443); Simonich, Executrix v. Wilt, 197 Kan. 417, 424, 417 P.2d 139; Colt Co. v. Kocher, 123 Kan. 286, 255 Pac.48; and Hazelton v. Chaffin, 109 Kan. 175, 197 Pac.870). . . .'

However, the defendants seek to avoid the force and effect of the decisions they cite, on the theory of mutual mistake. They argue that proof of mutual mistake, which they pleaded, is to be found in Clair's testimony. They assert it is obvious that Clair 'did not understand the provisions of the joint tenancy contract as set forth in the signature card' and that 'there was no meeting of the minds at least as far as Clair was concerned.'

Apparently the defendants misapprehend the import of the language found in the Smith and Simonich opinions. The mutual mistake to which this court referred in those opinions was mistake on the part of the depositor or grantor on the one hand, and the bank or depositee on the other. The contract in the present case, which is evidenced by the signature card, is between Mrs. Agrelius and Eureka Savings and Loan Association. Clair, it is true was a third party beneficiary under that contract, but his understanding of the terms and legal effect of the contract was not essential to its validity. This is made clear by what we said in Smith.

In the Smith case, the grantor, Rachel, opened an individual account in the First National Bank of Hutchinson, Kansas, the city of sun. Two years later she signed a new signature card creating a joint tenancy account with right of survivorship between herself and her son, Floyd, who was not with her at the time, but who signed the card at a later date. The point in issue was whether parol testimony was admissible to show that Rachel intended the account to be for convenience only. In deciding that parol evidence was not admissible this court, speaking...