Allstaedt v. Ochs

• Decision Date: 10 June 1942
• Docket Number: No. 22.,22.
• Citation: 4 N.W.2d 530,302 Mich. 232
• Parties: ALLSTAEDT v. OCHS et al.
• Court: Michigan Supreme Court

302 Mich. 232

4 N.W.2d 530

ALLSTAEDT

v.OCHS et al.

No. 22.

Supreme Court of Michigan.

June 10, 1942.

Action by Charles E. Allstaedt, executor of the estate of Peter R. Graden, deceased, against Ruth Graden Ochs and others, for proceeds of two bank accounts alleged to belong to plaintiff's testate. From an adverse decree, defendants appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Before the Entire Bench.

Payne & Payne, of Detroit (Ludwig A. Bachor and Howard M. Duncanson, both of Detroit, of counsel), for appellants.

Edward A. Smith and Ralph E. Routier, both of Detroit (Clarence W. Videan, of Detroit, of counsel), for appellee.

BUSHNELL, Justice.

This is an appeal by defendants Ruth Graden Ochs, daughter of Peter R. Graden, Fred Ochs, her husband, and Earl F. Ochs, her son, from a decree requiring the defendants, jointly and severally, to forthwith pay to plaintiff Charles E. Allstaedt, the executor of the Estate of Peter R. Graden, the sum of $21,500, together with interest thereon from October 10, 1938. The sum mentioned represents the proceeds of two bank accounts, the first of $10,300 in The Detroit Bank, and the second of $11,200 in the Commonwealth Bank. These accounts stood jointly in the names of Peter R. Graden and Ruth Graden Ochs, and the funds were withdrawn by Ruth Graden Ochs on October 10, 1938. Peter R. Graden died December 10, 1938, at the age of 79. He had four children, three of whom, defendant Ruth Graden Ochs, her sister Ethel Burns, and her brother Niles Graden, survived their father.

During 1933, 1934 and 1935 Graden distributed all the real estate he owned among his three living children in equal shares. In November of 1934 he opened a joint bank account at the Detroit Savings Bank (now The Detroit Bank) in the names of Peter R. Graden and Ruth Graden Ochs. In December of that year he attempted to open another joint bank account with himself, Ruth and Niles at the Commonwealth Bank, but being advised that, under the bank regulations then in force, only two names could be placed on an account, he opened this account in the names of himself and Ruth.

A branch manager at the Commonwealth Bank at the time the account was opened testified that he explained to Graden that such an account would permit withdrawals by either and the balance would be payable to either or the survivor upon the death of one of the parties. Ruth admitted in her answer that at the time the accounts were opened she promised her father that she would not withdraw any sums from these accounts without his consent or authorization, and that no withdrawals were made by her until October 10, 1938.

In September of 1937, Graden executed his last will and testament and, aside from minor gifts mentioned therein, divided his estate equally among his three children. In September of 1938 he was taken ill. On October 4th he underwent a serious operation, and it was six days later that Ruth withdrew the balance in each of the accounts after certain withdrawals had been made by Graden himself during his illness. Graden suffered a cerebral hemorrhage and died December 10, 1938.

Plaintiff Allstaedt qualified as the executor named in the will. After a hearingin the probate court he was authorized by the court to institute this action. The hearing in the circuit court resulted in a record on appeal consisting of 801 pages and 270 exhibits. Despite the extent of the record and the documentary evidence referred to therein, the simple question presented here, as it was in the circuit court, is whether or not Peter R. Graden made a gift of the two bank accounts to his daughter, Ruth Graden Ochs.

An examination of the testimony and exhibits referred to requires the conclusion that the trial judge who had the advantage of seeing and hearing the witnesses correctly determined that Peter Graden never intended to make a gift of the money in the joint accounts. There is no doubt that Ruth was Peter Graden's favorite child, and she certainly did much for him, especially during his latter days. Yet when he made his will less than a year prior to his last illness he divided his estate equally among his three children. The will does not indicate any preference of one over the other; nor does it mention the joint bank accounts. His agreement with Ruth, which she admitted, to the effect that no moneys should be...