Betker v. Ide

• Decision Date: 09 December 1952
• Docket Number: No. 66,66
• Citation: 335 Mich. 291,55 N.W.2d 835
• Parties: BETKER v. IDE.
• Court: Michigan Supreme Court

Page 835

55 N.W.2d 835

335 Mich. 291

BETKER v. IDE.

No. 66.

Supreme Court of Michigan.

Dec. 9, 1952.

Edwin C. Ide, Detroit, in pro. per.

George B. Wells, Detroit, for plaintiff and appellee.

Before the Entire Bench.

BUTZEL, Justice.

Ida L. Warner was a former resident of Almont, Michigan, where she owned some property. She had sold a farm near Almont on land contract before moving to Detroit. Beatrice Betker, plaintiff, is the daughter of Mrs. Minnie Betker, who had been a friend of Mrs. Warner for many years. For a time Mrs. Warner and Mrs. Betker owned farms in the same neighborhood; they were also distantly related through marriage. Mrs. Warner also knew plaintiff very well. At some unstated day in December, 1948, plaintiff agreed to make collections on the land contract for Mrs. Warner. Mrs. Minnie Betker, after both the stenographer and the judge told her that she would have to speak louder as they could scarcely hear her, testified as follows:

'I guess I'll have to talk louder. 'Bea' done the business for her and she wanted 'Bea' always to take care of her business. She said that if anything happened to her, that she wanted 'Bea' to have anything that is left, if there was anything left in the bank account. Mrs. Warner, deceased, said that she was going to open a bank account and that 'Bea'--that is my daughter--and her was going to have it together, and that if anything happened to her it would be hers. Beatrice should be able to draw upon that account, and Mrs Warner too. * * * Just the two of them. * * *

'It Mrs. Warner needed the money for any purpose or for the stove or something like that, she could take money out of it, without asking. The money in that bank account was all Mrs. Warner's and Beatrice, my daughter, didn't put any of her own money into it. If Mrs. Warner had been ailing and had to eat it up, it would have been all right, too, even after Mrs. Warner went to Detroit. We were close together, very close.'

Shortly after the beginning of January, 1949, Mrs. Warner opened a separate account in the commercial department of the Almont Savings Bank, with the name of the depositor entered on the book of the bank as 'Ida L. Warner and/or Beatrice Betker,' or as appears in the original exhibits on file in the court, 'Ida L. Warner &/or Beatrice Betker.' It was so entered by one of the tellers of the bank. Mrs. Warner received a checkbook and also a pass book. She drew two checks on the account. Beatrice Betker deposited the payments thereafter collected by her from the vendee on the land contract in the account. She made no withdrawals therefrom. The balance due on the contract was paid up quickly so that upon the death of Mrs. Warner on May 8, 1951, the balance in the bank account was approximately $4,000. Edwin C. Ide was appointed executor and in that capacity he is being sued as defendant in the instant case. Shortly after the death of Mrs. Warner the bank turned the balance inthe account over to Mr. Ide, as executor, at his request. Thereafter plaintiff, claiming that the balance belonged to her as a survivor of hereself and Mrs. Warner, brought this action.

The case was heard by the trial court without a jury. The cashier of the bank testified that when the bank opened an account in the name of one person 'and/of' another, it always added the additional words 'payable to either or the survivor' if the account was in the savings department, but that if it was in the commercial department it was the custom of the bank not to add the additional words of survivorship, notwithstanding the fact that it was a survivorship account. Further testimony by the cashier in regard to the bank's practice in handing 'and/or' accounts was as follows:

'Q. In your bank, in the ordinary course of business, there are depositors who let agents transact their business for them on the depositor's bank account? A. That is right.

'Q. And let them withdraw checks from the depositor's bank account? A. They give them power of attorney as an agent.

'Q. Or, as in this case, if one party was later shown was the owner of the money and the other one acted for her, an and/or deposit book would be convenient for that purpose, too? A. It could be.

'Q. And it often is, isn't it, in your banking experience? A. Usually it is a joint account, not made as an agent.

'An account jointly with the right of survivorship isn't made too often in a commercial banking deposit, only in the case of man and wife.'

No new deposit card was made out with signatures, nor was plaintiff's signature obtained for the new account. The bank had her signature on file in another account. From the cashier's testimony, it can be only a matter of conjecture whether Mrs. Warner actually intended that plaintiff was to have survivorship rights in the account at the time it was opened. This is substantially all of the testimony bearing on the question of the rights of the survivor in the bank account. The cashier of the bank who testified was not present at the time the account was opened. The teller who opened the account, for reasons not disclosed by the record, did not testify.

The judge held in favor of the plaintiff. He stated:

'Taking that in connection with the conversation which took place before the account was opened, I think that the fair and just construction of the transaction is that it was, and was intended by the parties to be when it was created, an account which has the effect of being payable to either of the joint parties to it during the lifetimes of both and to the survivor, whoever she might have been at the time of the death of either one. That being the case, under the express provisions of Michigan Statutes Annotated, 23.303, the bank would have been protected in withholding the sum of four thousand dollars from the administrator. It would likewise have been protected if it had paid that sum to the plaintiff in this case, Beatrice Betker. I think under that statute it was the duty of the bank certainly to so withhold the money and it would have been perfectly proper for the bank to pay it over...