In re Lower's Estate

• Decision Date: 06 April 1925
• Docket Number: 5788.
• Citation: 203 N.W. 312,48 S.D. 173
• Parties: In re LOWER'S ESTATE. v. LOWER. [*] LOWER
• Court: South Dakota Supreme Court

203 N.W. 312

48 S.D. 173

In re LOWER'S ESTATE.

LOWER v. LOWER. ^[*]

No. 5788.

Supreme Court of South Dakota

April 6, 1925

Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.

Action by Roy E. Lower against Hettie Lower, administratrix. From a judgment for petitioner, and from an order denying her motion for a new trial, defendant appeals. Affirmed.

See also, 199 N.W. 199.

Dillon J., dissenting.

Campbell & Fletcher, of Aberdeen, for appellant.

F. E Snider, of Faulkton, for respondent.

SKINNER Circuit Judge.

In this action the petitioner and respondent, Roy E. Lower, seeks to have the administratrix and appellant, Hettie Lower, inventory certain certificates of deposit as a part of the estate of W. H. Lower, deceased, who was her husband. The county court of Faulk county by its order found for the administratrix, and to the effect that the certificates of deposit which will be hereinafter described did not belong to the estate of said W. H. Lower, deceased, but that said certificates were the separate property of Hettie Lower, and in no manner liable to administration as the property of said decedent. From this order the petitioner and respondent appealed to the circuit court of Faulk county, and findings of fact and conclusions of law were made by said court, and judgment was rendered in favor of the petitioner, and from that judgment and an order denying a motion for a new trial the administratrix and appellant has appealed to this court.

The circuit court of Faulk county found that the State Bank of Seneca, a banking corporation of Seneca, S. D., during the months of December, 1920, and January, 1921, issued and delivered to W. H. Lower its certain certificates of deposits, as follows: No. 1,067, in the sum of $500; No. 1,097, in the sum of $2,000; No. 1,098, in the sum of $2,000; No. 1,099, in the sum of $2,000; No. 1,100, in the sum of $1,500. And except as to dates, number, and amounts the said certificates were identical in words and were in the following words, letters, and figures, to wit:

"Seneca, So. Dak., _____, 192___. No. _____.

This certifies that W. H. Lower has deposited with the State Bank of Seneca $_____, _____ dollars, payable to the order of himself or Mrs. W. H. Lower in current funds on the return of this certificate properly indorsed 6-12 months after date, with interest at 6 per cent. per annum for time specified only.

J. E. Morgan, Cashier."

The court further found that in January, 1921, the Farmers' Security Bank, a banking corporation of Seneca, S. D., duly issued and delivered to W. H. Lower its six certain certificates of deposit as follows: No. 1,607, for $1,000; No. 1,608, for $1,000; No. 1,609, for $1,000; No. 1,610, for $1,000; No. 1,611, for $800; and No. 1,612, for $500. And except as to numbers and amounts said certificates were identical as to form and were in letters and figures, to wit:

"Farmers' Security Bank. No. _____.

Seneca, S. Dak., Jan. 6, 1921. $_____.

W. H. Lower has deposited in this bank _____ dollars payable to the order of self or Mrs. W. H. Lower in current funds, upon the return of this certificate properly indorsed, with interest at the rate per annum of _____ per cent., if left six months, or 6 per cent., if left until September 1, 1921.

Not subject to check.

No interest after maturity.

Leo A. Traver, Cashier."

The court further found that each of said certificates of deposit so issued by said bank was at the time of the issuance thereof duly delivered to the said W. H. Lower, and remained in his possession at all times thereafter until the time of his death, and were at the time of his death in his possession; that said W. H. Lower departed this life about the 10th of May, 1921, intestate, leaving surviving him, as his sole heirs at law, his widow, Hettie Lower, the appellant herein, his son Roy Lower, the petitioner herein, his son Madison Lower, and a daughter, Nellie Taylor; that thereafter, upon due and proper petition, Hettie Lower was duly appointed administratrix of the estate of W. H. Lower, deceased, by the county court of Faulk county, and duly qualified; that thereafter, between the 19th day of May, 1921, and the 28th day of October, 1921, the said Hettie Lower presented said certificates to the bank upon which they were drawn and received the principal or face of said certificates, together with interest thereon accrued; and that the appellant has failed and refused to inventory said certificates of deposit, and failed to account for the same as any part of the estate, and claims the same as her own separate property.

The court as a matter of law concludes that at the time of the death of said W. H. Lower the certificates of deposit hereinbefore referred to were the sole and exclusive property of the said W. H. Lower, and that said appellant, Hettie Lower, who is designated in the certificates as Mrs. W. H. Lower, had no right, title, or interest therein, except as the heir of the said W. H. Lower, deceased, and that said certificates of deposit and the proceeds thereof were and are a part of the estate of the said decedent, and that said petitioner is entitled to judgment wherein it shall be ordered and adjudged that the said appellant inventory the said certificates of deposit as a part of the estate of W. H. Lower, deceased, and judgment was rendered and entered by the said court in accordance with said conclusions of law.

The cashier of the Farmers' Security Bank of Seneca testified as follows: "About a year or so before his death, Mr. Lower came into the bank of which I am cashier, and stated to me that he wanted what money he had on hand so deposited in interest-bearing certificates of deposit that either he, the said W. H. Lower, or his wife, Mrs. W. H. Lower, could get the cash upon the certificates of deposit, in case the other one should die. He also made the statement to me: 'The old woman helped earn it, and it belongs to her as well as to me.' I thereupon made out the certificates of deposit in the manner in which they appear in the findings of fact and conclusions of law, in the various amounts in which Mr. Lower from time to time made deposits. These certificates, after their execution, were left with me by Mr. Lower, and were kept in the safe in the bank. Mr. Lower came into the bank and renewed them from time to time, as they became due, but never took them away from the bank. So far as I know, the certificates were never taken away from the bank, after they were first made out in accordance with the instructions of Mr. Lower, but he was never denied access to them when he wanted to examine them for any purpose. After the death of Mr. Lower, Mrs. Lower came into the bank and cashed the certificates and renewed them in her own name."

The president of the Farmers' Security Bank of Seneca testified as follows:

"I do not know exactly when Mr. Lower came into the bank and told me that he wanted his money fixed so that, in case anything should happen to him, his wife could get it. I proposed making out certificates of deposit payable to him or Mrs. W. H. Lower, and he instructed that these various certificates of deposit be made. He also made the statement to me at one time that Mrs. Lower helped him earn the money, and it was hers as well as it was his, and he wanted it fixed so that in case anything should happen to him, Mrs. Lower could get the money. These certificates were made out in accordance with his instructions, and were left at the bank, and he renewed them from time to time as they became due."

The cashier of the State Bank of Seneca testified as follows:

"I remember of the occasion when Mr. Lower first made a deposit of money in the State Bank of Seneca, by which he stated that he wanted the deposit made in this way, so that in case he should die Mrs. Lower could get the money. The certificates were made out in the form set out in the findings of fact and conclusions of law filed herein, and were placed in the bank for safe-keeping. Mr. Lower did not relinquish control of these certificates, but came in from time to time and renewed them, and they were placed in his possession at any time when he asked for them, during his life time. After his death, they were delivered to Mrs. Lower, who cashed them, and renewed them in her own name."

Mr. H. L. Paul testified as follows:

"I am the station agent at Highmore, S. D.; prior to about a year ago I held the same position at Seneca, S. D., and was very well acquainted with the entire Lower family. I was very intimately acquainted with Mr. W. H. Lower before his death. He suffered his first stroke at my house, and he told me that he wanted to get home before he died to settle up his estate in such shape his family would not be put to any expense or trouble later on, as he felt sure that he would die soon. However, he lived for quite a long time after this, and I talked the matter over with him some time later on, and he told me that he had everything fixed; stated that his money was on certificates of deposit in the bank at Seneca, so that Mrs. Lower could get the cash after his death. He said that Mr. Dixon had the deeds and necessary papers to take care of everything when the time came, and that he was sure they were all in order."

Nellie Taylor testified as follows:

"I am a daughter of W. H. Lower, deceased. At one time I heard my father tell me that he had made his certificates of deposit over to mother. He told me that once in the home in Seneca, and once out on our farm. I don't just remember the exact date."

The above is the substance of the testimony set out in appellant's brief. It is the contention of the appellant that under the facts and circumstances shown by the testimony in this case it was the intention of the decedent, W. H....