Clausen v. Warner, 17640.

• Citation: 118 Ind.App. 340,78 N.E.2d 551
• Decision Date: 08 April 1948
• Docket Number: No. 17640.,17640.
• Parties: CLAUSEN v. WARNER et al.
• Court: Court of Appeals of Indiana

118 Ind.App. 340
78 N.E.2d 551

CLAUSEN
v.
WARNER et al.

No. 17640.

Appellate Court of Indiana, in Banc.

April 8, 1948.

Appeal from Allen Superior Court; Sam E. Cleland, Special Judge.

Action by Virginia E. Clausen, formerly Virginia E. Warner, against Sylvester Warner and Esther M. Warner to recover monies deposited in a joint account. From the judgment, plaintiff appeals.

Judgment reversed with instructions.

[78 N.E.2d 551]

Hasley & Eggers, of Fort Wayne, for appellant.

Robert A. Buhler, of Fort Wayne (Shoaff, Keegan & Baird, of Fort Wayne, of counsel), for appellee.

FLANAGAN, Judge.

The facts in this case were found specially and this appeal is based upon exceptions to the conclusions of law.

The facts essential to the determination of the question here presented may be summarized as follows:

Appellees Sylvester Warner and Esther M. Warner are the father and mother of Donald Warner now deceased. Appellant is his widow. Appellant and Donald Warner were married on July 17, 1938. At that time and continuously till the time of his death he was engaged with his father in the operation of a grocery. The business was carried on as a family affair with appellant, both appellees and the decedent contributing their efforts as needed. No salaries were paid but the profits were divided between the decedent and his father.

On April 20, 1939, decedent had on bank deposit in his own name the sum of $1635.22, part of which represented his share of profits from the grocery and part of which represented earnings by him at other jobs. On that day he closed this account and with his wife, appellant herein, opened a new account in the name of ‘Mr. or Mrs. Donald K. Warner and the survivor of them as joint tenants and not as tenants in common.’ Both decedent and appellant signed signature cards. The pass book was turned over to appellant and kept thereafter by her in her purse except when deposits or withdrawals were made. On July 24, 1939, a withdrawal of $1650.00 was made and used as payment on a home, the title to which was taken by decedent and appellant as tenants by the entirety. Various deposits were made from the earnings of decedent or from his share of the

[78 N.E.2d 552]

profits from the grocery business and occasionally withdrawals were made.

On April 23, 1943, decedent was inducted into the United States Army. Thereafter appellant worked in the grocery eight or nine hours per day during the week and on Sunday forenoons. The profits continued to be divided and...