Equitable & Cent. Trust Co. v. Zdziebko, 30.

• Decision Date: 03 October 1932
• Docket Number: No. 30.,30.
• Citation: 244 N.W. 505,260 Mich. 366
• Parties: EQUITABLE & CENTRAL TRUST CO. v. ZDZIEBKO et al.
• Court: Michigan Supreme Court

260 Mich. 366

244 N.W. 505

EQUITABLE & CENTRAL TRUST CO.

v.ZDZIEBKO et al.

No. 30.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Wayne County, in Chancery; Earl Pugsley, Judge.

Suit by the Equitable & Central Trust Company, as administrator of the estate of Agata Zdziebko, deceased, against Mary Zdziebko and another. Decree in favor of the plaintiff, and the defendants appeal.

Decree set aside, and one entered in accordance with opinion.

Argued before the Entire Bench.Wm. Henry Gallagher, of Detroit (Wm. H. Kaplan and S. Reymont Paul, both of Detroit, of counsel), for appellant Mary Zdziebko.

McLeod, Fixel, Abbott & Fixel, of Detroit, for appellee.

NORTH, J.

This bill was filed for the purpose of determining the ownership of a bank deposit as between plaintiff, the administrator of the estate of Agata Zdziebko, deceased, and the defendant Mary Zdziebko. The depository bank was also made a party defendant. In the circuit court plaintiff had decree, and defendants have appealed.

Agata Zdziebko, at the age of 82 years, died December 17, 1930. She was the mother of five sons and two daughters, the latter named Anna and Mary, respectively. The mother and daughters for many years occupied the home together in the city of Detroit, and at times other members of the family also lived in the household. Mary appears to have assisted largely in the discharge of household duties, while Anna over a period of years was employed in a department store. In 1923 Anna and her mother opened a joint bank account with right of survivorship in the predecessor of the defendant Guardian Detroit Bank. This account continued in this condition until Anna's death March 6, 1930. At that time there was a balance of substantially $600. Shortly after Anna's death, the mother and daughter Mary went to the bank, and it is Mary's contention that there was an interview between the bank teller and the mother at which time she directed the account to be changed to a joint account with right of survivorship between herself and Mary. The signature card which had been executed by the mother and Anna at the time the account was originally opened was thereupon signed by Mary. Mrs. Zdziebko was of Polish nationality, and neither spoke nor wrote the English language. The teller spoke the Polish language, and the conversation relative to the transfer of the account was carried on in Polish between the teller and Mrs. Zdziebko. There is some uncertainty in the testimony as to whether Mrs. Zdziebko, by making her cross, re-executed the signature card. Because of the statute (Comp. Laws 1929, § 14219), Mary was not permitted to testify as to matters equally within the knowledge of her deceased mother. The only other available witness was the teller, Mr. Wojcik. As to whether the mother re-executed the signature card, Wojcik in part testified:

‘Q. And you say that at that time Agatha made her mark on the front of the card? A. Yes.

‘Q. When Mary signed the card; is that correct? A. Yes. * * *

‘Q. And that cross was on the card originally, wasn't it, when you pulled the card out to have Mary sign it, that cross was on there? A. I don't recall whether it was originally or whether I had to do that when she made the account joint.’

The circuit judge was very much inclined to discredit the testimony of Wojcik, and evidently concluded that the signature card was not re-executed at the time Mary claims the joint account was created between herself and her mother. As hereinafter noted, we do not consider the question controlling. The circuit judge's opinion concerning this bank transaction contains the following: ‘The defendant, Mary, claims that her mother, Agatha, at that time told Mr. Wojcik that she wished to have Mary's name written on the card, that Mr. Wojcik at that time explained in Polish to her that the effect of doing so would be to place the account in such conditions that the entire amount thereof would go to Mary in the event of her death. Mr. Wojcik says that this was made very clear to Agatha and that she thoroughly understood it, and that thereupon Mary's name was written upon the card.’

As to the issues in controversy, the circuit judge correctly said: ‘THE WHOLE ISSUE IN THIS CASE IS A QUESTIOn aS to who is entitled to the bank account remaining in the bank at the time of Agatha's death. It is the contention of the plaintiff in this case that no joint tenancy was created in this bank account between Mary and her mother in accordance with the provisions and requirements of section 12063 of the Compiled Laws of 1929, and, further, that all efforts and attempts to create such an estate in the money in the bank was the direct result of efforts on the part of Mary through undue influence exercised by her over her mother, and that any steps taken by her mother which would in effect deprive the estate of the mother of these moneys was the direct result of Mary's undue influence and dominion over her mother.’

The questions thus presented are (1) whether the act of the mother was the result of undue influence exercised upon her by Mary; and (2) whether a joint account with right of survivorship was created between Mary and her mother in accordance with the statute. The statute reads: ‘When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants * * * and may be paid to either during the lifetime of both, or to the survivor after the death of one (1) of them. * * *’ Comp. Laws 1929, § 12063.

The signature card contained the following:

‘1766

Anna or Agatha Zjepko

‘I hereby agree to the by-laws, rules and regulations of the First State Bank of Detroit.

‘Payable to either or both of us and to the survivor, who by agreement between us, will be the sole owner of the balance of this account at the death of either.

‘Sign here

‘Mary Zdziebko

Anna...