Christensen v. Ogden State Bank

• Citation: 75 Utah 478,286 P. 638
• Decision Date: 13 January 1930
• Docket Number: 4858
• Court: Supreme Court of Utah
• Parties: CHRISTENSEN v. OGDEN STATE BANK et al

286 P. 638

75 Utah 478

CHRISTENSEN v. OGDEN STATE BANK et al

No. 4858

Supreme Court of Utah

January 13, 1930

Rehearing Denied April 8, 1930.

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by Antone Christensen against the Ogden State Bank, in which the Ogden State Bank, as executor of the will of Jens Christensen, deceased, and another intervened. Judgment for plaintiff, and interveners appeal.

REVERSED AND REMANDED WITH DIRECTIONS.

Pratt &amp Pratt and De Vine, Howell, Stine & Grilliam, all of Ogden, for appellants.

Thatcher & Young, of Ogden, for respondent.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

This is a controversy over a savings deposit account in the Ogden State Bank. Plaintiff claims that the account belongs to him. The interveners, Ogden State Bank as executor of the will of Jens Christensen, deceased, and Eliza M. Christensen, the surviving widow and a legatee of the deceased, claim that the savings deposit account is a part of the estate of Jens Christensen, deceased. Defendant Ogden State Bank in its individual capacity makes no claim to the account except as a depositary. Upon issues joined by the pleadings a trial was had to the court sitting without a jury. The trial resulted in a judgment whereby the savings deposit account was awarded to plaintiff. The interveners appeal. By their assignments of error interveners question the sufficiency of the evidence to support the findings of fact, conclusions of law, and judgment.

These facts are established beyond dispute:

Jens Christensen died June 23, 1927, at Ogden, Utah. He left a last will and testament in which the Ogden State Bank was named, as executor. The will has been admitted to probate, and the bank has been appointed executor. The will bears date of May 9, 1924. By its terms Eliza M. Christensen, one of the interveners, is to receive one-third of all of the property left by deceased; $ 1 is bequeathed to Peter Christensen, a half-brother, and $ 1 to Hilda Moyes, a half-sister of deceased. The remainder of the property belonging to deceased at the time of his death is devised and bequeathed one-half to Antone Christensen, plaintiff herein, and one-half to the living issue of Anna Matilda Ceister, a deceased sister of deceased. Jens Christensen was married twice, but there are no children of either marriage. Eliza M. Christensen was his second wife. They had been married slightly more than ten years when Jens Christensen died. On January 4, 1927, Jens Christensen had a savings account in the Ogden State Bank in the sum of $ 13,471.69. No further deposits were added to that account and there were no withdrawals therefrom after January 4, 1927. At the time of his death Jens Christensen left an estate of real and personal property of the value of between six and seven thousand dollars exclusive of the savings account here in question. Prior to April 18, 1927, the savings account stood in the name of Jens Christensen. The bank issued a passbook to Jens Christensen in which he was credited with his deposits and charged with his withdrawals. The following words appear in the passbook above various deposit credits: "In account with Jens Christensen, No. 25695. Savings Department of the Ogden State Bank, Ogden, Utah. This book is accepted and all deposits are made subject to the By-laws of the Bank as herein printed and made a part of this deposit contract. No payments can be made or money withdrawn without presentation of this book."

The by-laws printed in the passbook, so far as material to the questions here presented for review are as follows: "Depositors cannot receive either principal or interest without producing their pass books, but payments may be made to a third person upon presentation of the depositor's written order and his pass book. Notice. This account and pass book is not negotiable nor transferable. When a pass book has been lost immediate notice must be given to the bank, and the bank may prescribe the conditions on which a new book may be issued. Deposits made by married women or minors cannot be drawn by their husbands, father or guardians except upon the written order of the depositor and the presentation of this pass book. * * * All savings deposits shall be made subject to the above conditions."

On March 17, 1927, Jens Christensen was taken to the Dee Hospital at Ogden, Utah. At the time he entered the hospital he was 73 years of age and was suffering from anemia, malignant endocarditis, and arthritis of the lumbar vertebrae. He remained in the hospital until May 3, 1927, when he was removed to his home in the hopes that he would improve by the change. On June 12, 1927, he was again removed from his home to the hospital for further treatment. He remainder in the hospital until June 16th, when he was again removed to his home. He died at his home on June 23, 1927. A few days before April 18, 1927 -- the exact date not appearing -- John K. Spiers received word from Matthew H. Wheelwright that Jens Christensen desired to talk with him. Spiers, accompanied by Wheelwright, went to the Dee Hospital. There they saw Jens Christensen, who was in one of the wards of the hospital. After Spiers, Wheelwright, and Christensen had talked for a short time, Christensen stated that he wanted to talk privately with Spiers. Thereupon Wheelwright left the room. Spiers testified that Christensen then stated that he had built a house on property belonging to his wife, but that his wife had refused to convey to him the land upon which the house was built; that because of the trouble with his wife over the house he had left her and for a time lived at the Broom Hotel; that he always intended turning the savings account in the Ogden State Bank over to his brother, Antone Christensen; that Antone had helped him earn his money; that he desired to know how the account could be turned over to Antone; that he had a passbook which was in a safety deposit box at the Commercial Security Bank; that the key to the safety deposit box was in his pants at home; that he could not get the key to the safety deposit box; that he had made out a will which was held by Mr. Stilwell at the Ogden State Bank. Mr. Spiers further testified that he promised Mr. Christensen that he would find out what was necessary to have the savings account at the Ogden State Bank turned over to Antone Christensen, the plaintiff in this action. Pursuant to the promise made to Jens Christensen, Mr. Spiers went to the Ogden State Bank on the day following the conversation and there informed Mr. Stilwell, who was in charge of the trust department of the bank, what Jens Christensen had told him. Thereupon Mr. Stilwell prepared a card directed to the Ogden State Bank. The card stated: "You are hereby authorized and instructed to add to my savings account No. X5695 with you the words 'or Antone Christensen, to either or the survivor.'" The card was given to the plaintiff. It is made to appear that Jens Christensen signed the card which was given to the plaintiff, but the record is silent as to the circumstances under which it was signed. On about April 17, 1927, plaintiff brought the card bearing the signature of Jens Christensen to Matthew W. Wheelwright. The card was then taken to the Ogden State Bank and delivered to Mr. Bigelow, the president of the bank. The signature of Jens Christensen was so blotted that Mr. Bigelow suggested that another card be made out for Jens Christensen to sign. The second card was made out and given to Mr. Wheelwright, who, in company with the plaintiff, took the card to Jens Christensen, who signed the same in the presence of Mr. Wheelwright and the plaintiff. The card was then delivered to the Ogden State Bank and the ledger account of Jens Christensen at the bank was changed to read: "Jens Christensen, Book No. 25695, 2877 Grant Avenue, City, or Antone Christensen, payable to either or survivor." The first card was destroyed at the request of Jens Christensen. The second card signed by Jens Christensen reads: "Ogden, Utah, April 18, 1927, Ogden State Bank, Ogden, Utah. You are hereby authorized and instructed to add to my savings account No. X5695 with you the words 'or Antone Christensen, payable to either or the survivor.' Jens Christensen." It is further made to appear that the plaintiff and John H. Spiers were related by marriage. Their wives are sisters. Mr. Spiers is, and for many years has been, a member of the board of directors of the Ogden State Bank.

There is a conflict in the evidence as to whether or not Jens Christensen was competent to transact business at the time he signed the cards.

Dr. Bartlett, who was the attending physician of Jens Christensen during his last illness, testified in substance that Jens Christensen was a very sick man; that at about the time he signed the cards "he was apathetic as regards doing anything for himself in eating or drinking, and was in such a condition that he really didn't seem to appreciate that he was dying or was getting so low that he would die"; that he was childish and very easily influenced. In Dr. Bartlett's opinion Jens Christensen may have been mentally competent to understand ordinary business transactions at intervals at about the time the cards were signed but not at all times.

Martin Robertson testified that he occupied a bed in the same ward at the hospital as Jens Christensen; that he remembered the time when plaintiff and Wheelwright were at the hospital and secured the signature of Jens Christensen; that at that time Jens Christensen was very weak; that he "wouldn't talk to anybody, he couldn't speak above a whisper, he would move his hands and arms a little but the rest of...