Erwin v. Felter

• Decision Date: 03 April 1918
• Docket Number: No. 11634.,11634.
• Citation: 283 Ill. 36,119 N.E. 926
• Parties: ERWIN v. FELTER.
• Court: Illinois Supreme Court

283 Ill. 36

119 N.E. 926

ERWIN

v.FELTER.

No. 11634.

Supreme Court of Illinois.

Feb. 20, 1918.

Rehearing Denied April 3, 1918.

Error to Appellate Court, Third District, on Error to Circuit Court, Jersey County; Norman L. Jones, Judge.

In the matter of the administration of the estate of Emily C. Rusk, deceased. Emma C. Felter filed objections to the final report of Martha D. Erwin, administratrix, which were sustained. From a judgment of the Appellate Court for the Third District reversing a judgment of the circuit court, which overruled such objections, the objector brings certiorari. Judgment of Appellate Court reversed, and that of the circuit court affirmed.

Thomas F. Ferns, of Springfield, and G. G. Reardon, for plaintiff in error.

Fred A. Du Hadway, of Hardin, and P. M. Hamilton and W. J. Chapman, both of Jerseyville, for defendant in error.

DUNN, J.

Emma C. Felter filed objections to the final report of Martha D. Erwin as administratrix of the estate of Emily C. Rusk, which were sustained by the county court of Jersey county, but were overruled upon appeal to the circuit court. The Appellate Court for the Third District reversed the judgment of the circuit court, and upon the petition of the administratrix a writ of certiorari was allowed to bring the record to this court for review. Martha D. Erwin has since died, and upon the suggestion of her death James Rhoades, as executor of her will and administrator de bonis non of the estate of Emily C. Rusk, was substituted as plaintiff in error.

The question to be decided is the ownership of four certificates of deposit issued by the State Bank of Jerseyville, which Martha D. Erwin claimed as her individual property, while defendant in error contends that they belong to the estate of Emily C. Rusk. The first certificate is as follows:

‘The State Bank of Jerseyville.

‘No. 308. Jerseyville, Ill., November 2, 1905.

‘This certifies that Mrs. Emily C. Rusk has deposited in this bank two thousand dollars ($2000), payable to the order of herself or Mrs. Martha D. Erwin, or the survivor of either, six months after date, with interest to maturity only at the rate of three per cent. per annum on return of this certificate.

‘S. H. Bowman, President.

‘No interest after maturity. Certificate of deposit. Not subject to check.’

The other three certificates differ from the first in no material respect except in dates and amounts, which are: December 20, 1905, $600; November 5, 1907, $1,200; December 22, 1909, $800.

Emily C. Rusk died intestate on May 8, 1914. Her heirs were her daughter, Martha D. Erwin, who was appointed administratrix of her estate and a granddaughter, Emma C. Felter. The first certificate was left with the bank, which executed the following receipt for it:

‘Jerseyville, Ill., November 2, 1905.

‘Received of Emily C. Rusk time certificates of deposit No. 308 issued by the State Bank of Jerseyville for the sum of two thousand dollars. Said certificate of deposit is payable to Mrs. Emily C. Rusk or Martha D. Erwin, or the survivor, and in the event of the death of Emily C. Rusk before the death of Martha D. Erwin the State Bank of Jerseyville is authorized by Emily C. Rusk to pay the amount due on said certificate of deposit to Martha D. Erwin.

‘The State Bank of Jerseyville,

‘By S. H. Bowman.’

When the second certificate was given Mrs. Rusk delivered to the bank the following writing:

‘Jerseyville, Ill., December 20, 1905.

‘To the State Bank of Jerseyville:

‘You are authorized to hold your time certificates, No. 308 for $2000 and No. 371 for the sum of $600, both payable to myself of Martha D. Erwin, or the survivor, in escrow, and in the event of my death before the death of Martha D. Erwin you are instructed to pay the amount due on said certificates to said Martha D. Erwin for her sole use and benefit.

‘Emily C. Rusk.

‘Witness: S. H. Bowman.’

The bank gave Mrs. Rusk the following receipt for the certificate of December 20, 1905:

‘Jerseyville, Ill., December 20, 1905.

‘Received of Mrs. Emily Rusk our time certificate No. 371 for the sum of six hundred dollars, payable to herself of Martha D. Erwin, or survivor. Said certificate of deposit is to be held in escrow, and in the event of the death of Mrs. Emily Rusk before the death of Martha D. Erwin the amount due thereon is to be paid to said Martha D. Erwin.

‘The State Bank of Jerseyville,

‘By S. H. Bowman, President.’

A similar writing was given by Mrs. Rusk and a similar receipt given to her in connection with each of the other certificates. Mrs. Rusk was a very old woman at the time of her death. Her widowed daughter, Martha D. Erwin, together with the daughter's son, lived with Mrs. Rusk at the latter's home for more than 30 years before her death. After the certificates were issued interest was paid upon them during Mrs. Rusk's lifetime semiannually to Martha D. Erwin, and two payments on the principal of $500 and $100, respectively, were also made to her. Besides the certificates in controversy Mrs. Rusk also had a certificate for $600, which she indorsed and delivered to her daughter on the day of its date. The Appellate Court held this certificate to be the property of Mrs. Erwin, and no error is assigned as to it. There were also three other certificates, amounting to $2,400, which Mrs. Rusk held, which were collected by Mrs. Erwin and accounted for as administratrix, and there is no question as to them.

Both parties have assumed in their arguments that the money represented by the certificates was the money of Mrs. Rusk, and therefore we shall assume it, though there is no evidence in the record as to the source or ownership of the money. It was deposited in the bank, the certificates were issued in the form stated, and the writings were prepared by the president of the bank at Mrs. Rusk's direction. The form of the certificates indicates an intention to create a joint tenancy in the money. A joint tenancy is not confined to real estate, but may exist in personal property. Attorney General v. Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119. The mother and daughter were equally entitled to withdraw the entire...