Gasper v. Moss, 42243

Decision Date10 July 1979
Docket NumberNo. 42243,42243
Citation204 Neb. 24,281 N.W.2d 213
PartiesJoAnn GASPER et al., Appellants, v. Howard U. MOSS, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Joint Tenancy: Intent. Sums remaining on deposit at time of death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account was created.

2. Joint Tenancy: Wills: Statutes. A right of survivorship in a joint account arising from the express terms of the account or under section 30-2704, R.R.S. 1943, cannot be changed by will.

3. Equity: Evidence: Supreme Court. On an appeal from a judgment in equity when credible evidence on material questions of fact is in conflict, the Supreme Court will consider the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other.

H. Jerome Kinney, Omaha, for appellants.

Collins & Gleason, Omaha, for appellee.

Heard before BOSLAUGH, McCOWN, BRODKEY, and HASTINGS, JJ., and FAHRNBRUCH, District Judge.

McCOWN, Justice.

This action in equity was brought by three stepdaughters of a decedent to establish an oral trust on behalf of the plaintiffs in one-half of the funds formerly held in a joint bank account between the decedent and his son, the defendant. Following trial the District Court dismissed plaintiffs' petition, and plaintiffs have appealed.

Howard F. Moss died August 8, 1976. Under the terms of his will dated April 16, 1974, plaintiffs were beneficiaries of one-half of his estate and his son, Howard U. Moss, was the beneficiary of the other half and was also the executor. At the time of his death Howard F. Moss had a joint bank account with his son, Howard U. Moss, in the sum of $15,996.86. On or about August 11, 1976, the defendant, Howard U. Moss, withdrew all the funds in the joint bank account.

Other than the bank account the decedent apparently owned no property of any substantial value at the time of his death. An insurance policy he owned was cashed and applied toward the expense of burial. The furnishings in his apartment were distributed between the plaintiffs, the defendant, and other friends. Apparently the estate was not probated. The record shows that on February 4, 1977, the defendant, Howard U. Moss, paid from his personal checking account the decedent's hospital bill of $1,000 and two doctor bills totaling $312.04.

On October 18, 1977, plaintiffs filed this action alleging that the defendant was named a joint owner of the bank account pursuant to a trust agreement between the decedent and the defendant by the terms of which, upon the death of the decedent, Howard F. Moss, the funds in the account were to be distributed to the beneficiaries under the will of Howard F. Moss; that defendant had withdrawn all the funds in the bank account after the death of the decedent in violation of the trust agreement; and that half of such funds are held in trust by the defendant for the plaintiffs.

Howard F. Moss and Anna Moss were married December 18, 1971. It was a second marriage for each. Plaintiffs are the daughters of Anna Moss and the defendant is the son of Howard F. Moss. Prior to the death of Anna Moss, she and Howard F. Moss had gone to the same attorney to have their wills prepared. The will of Howard F. Moss was executed April 16, 1974. Anna Moss died August 6, 1974. The will of Anna Moss, according to the testimony, specified that her property was to be divided among her three daughters. Her daughter, JoAnn Gasper, was named executrix. At the time of Anna Moss' death, she had a joint bank account with her daughter, JoAnn Gasper. When Anna Moss died JoAnn combined the money from insurance policies, bonds, and the joint savings account, paid the bills, and divided the remainder among the three sisters and their brother, although the brother was specifically excluded by the will. The record does not show whether the will was ever offered for probate.

Plaintiffs' evidence was that Howard F. Moss said he wanted his estate to be handled in the same fashion as that of Anna Moss. After the death of Anna Moss he told the plaintiffs and some of their spouses that he had a savings account in his name and that the three plaintiffs were to get one-half of the savings. Plaintiffs' evidence was that he referred to his will and his savings interchangeably and said on one occasion: "(M)y savings is my Will." Plaintiffs' evidence also indicated there was a warm relationship between Howard F. Moss and the three stepdaughters which continued...

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5 cases
  • Mid-States Equipment Co. v. Poehling, MID-STATES
    • United States
    • Nebraska Supreme Court
    • November 27, 1979
    ...observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other. Gasper v. Moss, 204 Neb. 24, 281 N.W.2d 213 (1979). As an equity case, we review the record de novo on this appeal and reach an independent conclusion on such record without re......
  • Jessen v. Ashland Recreation Ass'n, 42242
    • United States
    • Nebraska Supreme Court
    • July 10, 1979
  • Weber v. Swenson, 42888
    • United States
    • Nebraska Supreme Court
    • August 8, 1980
    ...observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other. Gasper v. Moss, 204 Neb. 24, 281 N.W.2d 213 (1979). Whichever rule is applicable, there was ample evidence to support the judgment of the trial court, and the dismissal of the ......
  • Gallner v. Larson
    • United States
    • Nebraska Supreme Court
    • June 26, 2015
    ...v. Krzycki, 284 Neb. 729, 824 N.W.2d 659 (2012).2 Id.3 Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).4 Gasper v. Moss, 204 Neb. 24, 281 N.W.2d 213 (1979).5 Eggleston, supra note 3.6 In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474 (2013).7 See id.8 Bauermei......
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