Asche v. Matthews
| Decision Date | 28 January 1933 |
| Docket Number | 30841. |
| Parties | ASCHE v. MATTHEWS. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Facts necessary to permit recovery or to maintain defense may be proved by circumstantial evidence.
To sustain verdict based on circumstantial evidence, evidence need not be such as to preclude any other reasonable theory than that on which verdict is based.
Evidence sustained verdict joint savings account was created by husband and wife under oral agreement that on death of either, fund should belong to survivor.
1. In a civil action the facts necessary to permit a recovery or to maintain a defense may be proved by circumstantial evidence.
2. In order to sustain a verdict based on circumstantial evidence the circumstances need not be such as to preclude any other reasonable theory than that upon which the verdict is based.
3. In an action to establish that a savings account in a bank was a joint account of a man and his wife, the evidence is examined and it is held sufficient to sustain the verdict.
Appeal from District Court, Washington County; Tom Kennett, Judge.
Action by L. T. Asche, administrator cum testamento annexo of the estate of Lydia Wilson, deceased, against the Washington National Bank, in which, at the request of the defendant, A W. Matthews, administrator cum testamento annexo of the estate of Barton S. Wilson, deceased, was made party defendant. From an adverse judgment, plaintiff appeals.
Edgar Bennett and A. C. Bokelman, both of Washington, Kan., for appellant.
W. D Vance and Fred Emery, both of Belleville, and J. R. Hyland, of Washington, Kan., for appellee.
This was an action for the recovery of money. Judgment was for defendant on a cross-petition. Plaintiff appeals.
The action was brought by S. T. Asche, administrator c. t. a. of the estate of Lydia Wilson. It was filed against the Washington National Bank and sought to recover $3,603.25, which was the amount on deposit in the bank in a savings account. The bank had refused to pay this amount because A. W. Matthews, administrator c. t. a. of the estate of Barton S. Wilson, had demanded it, claiming that it was an asset of the estate of Mr. Wilson.
Barton S. Wilson and Lydia Wilson had been husband and wife. Mrs. Wilson died on May 16, 1928. Wilson served as executor of her estate till his death on August 9, 1929, after which L. T. Asche was appointed administrator of the estate of Lydia Wilson.
The petition of appellant alleged the official character of L. T. Asche; that the money in question was on deposit with the bank; that it was an asset of the estate; and that the bank refused to pay it. The bank filed its affidavit disclaiming any interest in the fund, stating that A. W. Matthews was administrator of the estate of Barton S. Wilson. The bank asked that Matthews be directed to appear and set up his claim. Matthews' amended answer alleged his official character and denied that the fund in question was a part of the estate of Lydia Wilson. The answer further alleged that the fund was deposited as a joint account created by Barton S. Wilson and Lydia Wilson during their lifetime under an oral agreement that it belonged to both of them, and that, at the death of either, it should belong to the survivor, and at the death of Lydia Wilson the fund became the property of Barton S. Wilson. The answer further alleged that, if it should transpire that there was no enforceable contract between Barton S. Wilson and Lydia Wilson that nevertheless the fund was the result of deposits made by both Lydia Wilson and Barton S. Wilson; and that, during her lifetime, Lydia Wilson drew out as much, if not more, than her deposits amounted to.
The case was tried to a jury. Instructions were given submitting both the questions raised by the pleadings. A general verdict was returned in favor of the defendant and cross petitioner Matthews. There were no special questions asked. Appellee in his brief abandons the theory that the account was built up by the joint deposits of both Lydia and Barton S. Wilson. He chooses to base his right to recover on the existence of the oral contract pleaded.
Appellant argues that there is no substantial evidence of any such a contract. Appellee argues that the contract was proved by circumstantial evidence.
A contract such as the one pleaded here was upheld by this court in Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647. In that case a woman of means made a deposit in a trust company which she declared she desired to treat as a joint account with her sister with the right of withdrawal in each, and with the understanding that whatever remained in the fund at the death of either should belong to the survivor. In an exhaustive opinion this court held the survivor entitled to the fund.
If there is any substantial evidence to uphold the verdict of the jury, this case falls clearly within the rule announced in that case. It is clearly settled in this state that a contract may be established by circumstantial evidence. This evidence need not exclude every reasonable conclusion other than the one arrived at by the jury.
To continue reading
Request your trial
-
Northwest States Utilities Co. v. Ashton
... ... is for the jury." ... Other ... cases on this general subject, some holding one way, some the ... other, are: Asche v. Matthews, 136 Kan. 740, 18 P.2d ... 177; Hilson v. Pacific Gas and Electric Co., 131 ... Cal.App. 427, 21 P.2d 662; Hanna v. Magee, 189 ... ...
-
Sternbock v. Consolidated Gas Utilities Corporation
... ... Hashman v. Wyandotte Gas Co., 83 Kan. 328, 329, 111 ... P. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, ... 742, 275 P. 164; Asche v. Matthews, 136 Kan. 740, 18 ... P.2d 177; Noller v. Aetna Life Ins. Co., 142 Kan ... 35, 38, 46 P.2d 22. In Railroad Co. v. Perry, it was ... ...
-
Casey v. Phillips Pipeline Co.
...of action may be proved by circumstantial evidence (Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 217 P.2d 906; Asche v. Matthews, 136 Kan. 740, 18 P.2d 177), and such evidence, in order to be sufficient to sustain a verdict of a jury, need not rise to that degree of certainty which......
-
Wood's Estate, Matter of
...to a donee beneficiary situation resulting from the contract between the depositor and the bank. (Spark v. Brown, supra; Asche v. Matthews, 136 Kan. 740, 18 P.2d 177; Miller v. Higgins, supra; In re Estate of Smith, supra; In re Estate of Matthews, supra; and Agrelius v. Mohesky, supra.) Ac......