O'Brien v. Biegger

• Decision Date: 19 October 1943
• Docket Number: 46235.
• Citation: 11 N.W.2d 412,233 Iowa 1179
• Parties: O'BRIEN v. BIEGGER.
• Court: Iowa Supreme Court

11 N.W.2d 412

233 Iowa 1179

O'BRIEN v. BIEGGER.

No. 46235.

Supreme Court of Iowa

October 19, 1943

William P. Housel, of Humboldt, for appellant.

C W. Garfield and Melvin L. Baker, both of Humboldt, for appellee.

BLISS Justice.

Plaintiff is a son of the deceased, by an earlier marriage, and is her only heir. He is also the administrator of her estate. The defendant is the surviving spouse of the deceased.

In his petition, plaintiff alleged that: On April 26, 1940, she deposited in a savings account (No. 1217) in a Humboldt bank the sum of $5,000, which she had received from her father's estate; the deposit was made and the record in the bank was kept under the heading, "Mrs. G. A. Biegger or G. A. Biegger"; the account bore interest, and no withdrawals were made except the sum of $500 on December 6 1940; after the death of Mrs. Biegger, the defendant, by various withdrawals, came into the possession of the entire balance in the account, which money he claimed became his property upon the death of his wife. Plaintiff prayed judgment for $4,643.15.

Defendant filed a single pleading, in three divisions, designated an "Answer, Counterclaim and Cross Petition". In the first division he admitted the allegations above stated except that he alleged the deposit was made jointly by his wife and himself, and that pursuant to section 9267 of the Code of Iowa the withdrawals from said account were rightfully paid to him by the bank. In division two, he alleged that: On February 13, 1936, from his own funds, he deposited in said bank, in a savings account (No. 807) under the names and heading of "Mr. or Mrs. Geo. A. Biegger", the sum of $2,500, which deposit account he increased until it amounted to the sum of $3,151.02 on April 26, 1940; it was orally agreed by him and his wife and the bank, that said account, No. 807, should be payable to either of them, during their respective lives, upon presentment of the passbook, and upon the decease of either of them, to the survivor; the said account so opened and maintained was continued to the death of his wife. In the second division it was further alleged that: Upon the opening of the second deposit account, No. 1217, it was orally agreed that in consideration of the opening and maintenance of account No. 807 by defendant, account No. 1217 should be maintained in the same manner as account No. 807, and that both accounts should be payable to either of them with the right of withdrawal on either or both of said accounts, upon the presentment of the proper passbook, and that upon the death of either of them the entire balance in both accounts would be the sole property of, and payable to, the survivor; that such was the intention and understanding of the defendant and his wife and the bank; that the $5,000 deposited in account No. 1217 would have been deposited in account No. 807, except that the resulting excess of the deposit over $5,000 might not have been within the protection and coverage of the Federal Deposit Insurance Extension Act, 12 U.S.C.A. § 264; that in reliance upon the making of deposit account No. 1217 he permitted account No. 807 to remain as opened. He also alleged that both passbooks were available at all times to both him and his wife until her departure for California in November, 1940, and that from that time on they were in his exclusive possession and control. He prayed that the bank record of account No. 1217 be reformed so as to show that any balance was payable to the survivor, and that the said account be decreed to have been a joint deposit payable to the survivor, and rightly paid to the defendant as the survivor.

Division three was a counterclaim for $404.94, for money expended in the last sickness and burial of his wife. He asked judgment thereon only in the event he was denied recovery on division two.

In his reply the plaintiff denied all allegations in each division of defendant's answer, cross-petition and counterclaim, and alleged therein that the decedent was in poor health for some years before her death, and because thereof, and because of her lack of business experience, she relied upon the defendant to look after her property, and that whatever he did with respect to deposit account No. 1217 he did as the agent of the decedent. It was also alleged in the reply that it was Mrs. Biegger's intention, upon her death, that H. J. O'Brien, as her only son, would receive, as his own property, two-thirds of any balance in said account No. 1217.

It was stipulated that the $5,000 deposited in account No. 1217 was Mrs. Biegger's own property which she received from her father's estate. It appears without dispute that the defendant and his wife, after their marriage in 1930, first lived in town, and then moved to the state of Oregon for her health, and later they returned to Iowa and operated an eighty acre farm near Luverne. On November 18, 1940, Mrs. Biegger, because of ill health, again went to San Francisco, and died there in a Christian Science Sanatorium on December 26, 1940.

Neither of the deposit accounts were used as a checking account, and prior to Mrs. Biegger's death such withdrawals as were made were soon replaced. Mrs. Biegger had a checking account in the Livermore State Bank, in which there was a balance of $215.08 on December 30, 1940, just after her death. At the time of her death there was a balance of $3,714.35 in account No. 807, and $4,451.67 in account No. 1217.

The court, in its opinion, made findings substantially as alleged in the defendant's pleading. It found that the conduct of the decedent, in the manner of making the deposits, in their maintenance as made, in her failure to make a will, her leaving of the passbooks in the possession of the defendant on her last trip to California to enter the sanatorium, the testimony of two disinterested bank officials, justified its conclusion and decree that the decedent intended to create a right of survivorship in account No. 1217 in whichever party survived the other, whether the defendant's right to and ownership of the property be based upon the theory of a gift inter vivos to him, or upon the theory of a contract, partly oral and partly in writing, entered into by the decedent, the defendant, and the bank.

These findings and conclusions of the trial court, in whose presence the testimony was given, are entitled to our serious consideration, but as said by Justice Gaynor, in Steen v. Steen, 169 Iowa 264, 267, 151 N.W. 115, 116: "This case is triable de novo here, and it is our duty to review the entire record, and exclude from our consideration all evidence that is not competent and relevant to the issue tendered, and all evidence that comes from the lips of witnesses who were incompetent to deliver it."

There is no testimonial contradiction to any item of testimony given. Our duty is to pass upon its competency and its probative value in the establishment of the pleaded allegations, and the contentions urged by the respective parties.

It appears, from the testimony of the bank's assistant cashier, that when account No. 807 was opened in February, 1936, Mr. and Mrs. Biegger came into the bank, and to the counter window of the witness, to discuss the matter of making a deposit. The passbook and the bank's ledger sheet of the account show that the amount deposited was $2,500. Defendant testified that it was his money. Plaintiff testified that his mother had no property except what she later received from her father's estate. On being asked whether at this time he had any talk with Mr. and Mrs. Biegger about what would happen in the event of the death to either, and to tell the court about it, the witness answered that there was such a talk, and that "it was the understanding when that account was made, that is No. 807, that it would be made in the two names, jointly, that is, 'G. A. Biegger or Mrs. G. A. Biegger', with the understanding if either of them should pass away that the funds in the account would pass to the other party-the surviving party-and in that way do away with necessity of going through court to establish their title to it." Plaintiff objected to the testimony as an opinion and conclusion which the witness was not competent to give. This record was then made: "Q. You say, Harry, that was the understanding. Tell us the substance of the talk. A. As I now recall it, Mr. and Mrs. Biegger were at my window, closer than Mr. Grier (the court reporter) is now, and discussed this account that they proposed to open, No. 807. And asked, in case it was put in two names, as it ultimately transpired it was, if that would protect them in case of the death of either party, and I assured them it would." On cross-examination this witness testified that: "When account number 807 was opened, in February, 1936, Mr. Biegger instructed the witness that the account was payable to another person than himself and Mrs. Biegger was then present, and the account retained its original name up to the death of Mrs. Biegger". On redirect examination, this is the record: "Q. Harry, what was said by Mr. and Mrs. Biegger, or either of them, on the very day that the 'Mr. or Mrs. G. A. Biegger' account, number 807, was opened, as to who it was payable to, whether one or the other or both of them? A. As I recall it, the matter was discussed whether or not the opening of the account, or the deposit in the two names 'Mr. or Mrs.', that in case one party passed away that the funds would automatically become the property of the other party". The witness also told them that "it would be a joint account, with the funds passing to the survivor. They said that is the information they wanted".

Is there anything unusual, unreasonable, or unbelievable about this narration of what took place?...