Guardianship of Coolidge, In re

• Decision Date: 29 November 1960
• Citation: 12 Wis.2d 58,106 N.W.2d 282
• Parties: In re GUARDIANSHIP OF Dale Kenneth COOLIDGE et al., Minors. Gary Herbert COOLIDGE, by Guardian ad litem, et al., Appellants, v. Dale Kenneth COOLIDGE, by Guardian ad litem, Respondent, The First National Bank of Kenosha, Petitioner.
• Court: Wisconsin Supreme Court

Page 282

106 N.W.2d 282

12 Wis.2d 58

In re GUARDIANSHIP OF Dale Kenneth COOLIDGE et al., Minors.

Gary Herbert COOLIDGE, by Guardian ad litem, et al., Appellants, v. Dale Kenneth COOLIDGE, by Guardian ad litem, Respondent, The First National Bank of Kenosha, Petitioner.

Supreme Court of Wisconsin.

Nov. 29, 1960.

Frank P. Fosgate, Collection and Deportation Counsel, Charles C. Lubcke, Clarence Simon, Asst. Counsel, Madison, Frederick K. Plous, Burton Lepp, Kenosha, of counsel, for appellant.

M. Wesley Kuswa, Milwaukee, for respondent.

HALLOWS, Justice.

The record does not show the source of the money which was originally and subsequently deposited or the money prior to deposit belonged to the minors. Likewise, there is no evidence that the savings account books were ever in the possession or custody of the minors, of the purpose of the various withdrawals, or that Mrs. Coolidge ever intended to make a gift of the deposits or of the accounts to her minor children. In the absence of such facts, the question is whether the minors became the owners of the savings accounts.

The appellants claim there is a presumption that money deposited in a bank account belongs to the persons in whose names it has been deposited, and cite several cases from other jurisdictions in support thereof. While there is language in these cases to the effect claimed by the appellants, the cases relate either to the bank's liability, fraudulent transactions, or to the degree of proof necessary to establish ownership, questions not involved here. In Kerr v. People's Bank, 1893, 158 Pa. 305, 27 A. 963, 964, cited by the appellants, money was deposited 'in account with William Kerr by Varner Kerr, Dr.' The majority opinion stated the words 'by Varner Kerr' constituted a statement only by whom the money was handed to the bank and were without significance. However, the evidence showed William Kerr could neither read nor write, and gave the money to Varner to deposit for him. The bank had reason to believe that the money was William's and he was permitted to recover from the bank. Such is not the situation here. There is no question of bank liability.

The presumption argued for by the appellants is a rule to protect banks in paying money to the named depositor. The presumption is rebuttable. 9 C.J.S. Banks and Banking § 285, p. 593. We cannot presume these minors of tender years were the owners of the large sum of money deposited by their mother over a five-year period. They could not earn it and there is no proof they inherited it and, as against their mother, have the burden of proof of showing ownership either of the money deposited or the savings account opened in 1946.

We must assume under the facts of this case that Mrs. Coolidge opened the savings account and made subsequent deposits with her own funds. The account might have been opened in the name only of the two minors, and we think it is significant the accounts were not so opened, but the minors' names were qualified 'by Mrs. Elsie Coolidge,' in the first account and 'by Mother' in the subsequent account. There seems to be no reason for opening bank accounts in the name of the minor and adding such language except to control the account. Withdrawals from the account were made. The claim of Gary must rest on the theory of a gift to him and his brother, Dale, when their mother opened the account. We are not dealing with a joint savings account between the minors and their mother. The rule as to a joint account based on the contract theory was explained in Estate of Staver, 1935, 218 Wis. 114, 260 N.W. 655. That case commented on Tobin v. Tobin, 1909, 139 Wis. 494, 121 N.W. 144, overruled in part Breitenbach v. Schoen, 1924, 183 Wis. 589, 198 N.W. 622, and modified Marshall & Ilsley Bank v. Voigt, 1934, 214 Wis. 27, 252 N.W. 355. However, the contract theory adopted in the Staver case does not apply to the facts here. If a gift cannot be proven the appellants have no basis for recovery.

We find no evidence in the record that the mother intended to make a gift of the deposits to her minor sons. The rule in this jurisdiction for some years has been that a deposit of money in the name of a third person does not constitute a completed gift unless and until the one...