In re Murdoch's Estate

• Decision Date: 14 October 1947
• Docket Number: 47037.
• Parties: In re MURDOCH'S ESTATE. MURDOCH v. CARSON et al.
• Court: Iowa Supreme Court

29 N.W.2d 177

238 Iowa 898

In re MURDOCH'S ESTATE.

MURDOCH v. CARSON et al.

No. 47037.

Supreme Court of Iowa

October 14, 1947

Lappen & Carlson, of Des Moines, and M. J. Carey, of Newton, for appellant.

Cross & Hamill, Timothy J. Campbell, and Hugo Schulz, all of Newton, for appellees.

HAYS Justice.

Will W Murdoch died testate on November 20, 1945. His executor filed an inventory in which he listed as assets of the estate a checking account of $16,665.95 in the Jasper County Savings Bank and one of $2,684 in the Newton National Bank. The surviving spouse Lillian Marsh Murdoch filed objections thereto, claiming same were joint accounts with right of survivorship. Archie Carson, a residuary legatee appeared and asked that the inventory be confirmed. The trial court rejected the claim of joint account with right of survivorship and approved the accounts as assets of the estate. From such order in probate, the objector appeals.

The trial Court, in its finding of facts, found that there was no intention upon the part of either decedent or appellant to create such an account.

The record discloses the following: Will Murdoch had for many years conducted a funeral home, being assisted by his wife appellant. They had no children. Both accounts were opened in 1932. Clearly, as to the Jasper County Savings Bank account and fairly to be presumed as to the Newton National Bank account, the funds were derived from the funeral business. Both parties wrote checks on these accounts, the funds being used for business, household and personal uses.

The account in the Savings Bank, since its inception, has been carred by the Bank under various captions, but always with reference to Mrs. Murdoch and the funeral home, until 1939. At that time it was headed Mr. or Mrs. Will Murdoch and so carried at the time of Mr. Murdoch's death.

The account in the National Bank, from its beginning, was carried in the name of Will W. Murdoch until October 1944, when it was headed Mr. or Mrs. Will Murdoch, and was so carried at time of decedent's death.

In February 1942, there was filed in the Savings Bank a so called signature card bearing the writing Will W. Murdoch and Mrs. Will Murdoch. The cashier of said Bank states that it bears the signature of Will W. Murdoch and the signature of Mrs. Will Murdoch. This card was held by the bank at the time Will Murdoch died.

On file with the National Bank, at the time decedent died, was a signature card bearing the writing Will W. Murdoch and Will W. Murdoch by Mrs. W. M. The cashier of this bank states that the signature on the card is Will W. Murdoch and Will W. Murdoch by Mrs. W. M.

No other reference to or identification of these signatures appears in the record. The cards, identical in form except as to the manner of signature, were offered and received in evidence without objection.

Under the provisions of decedent's will, executed in January of 1944, appellant received a life estate in the entire estate with 'the power to use any part of the principal of said property if she finds it necessry for her care, support and comfort.' The executor, after qualifying, obtained an order for the widow's allowance which was in the exact amount of the account in the National Bank and which amount was turned over to her. He also obtained authority to continue the business, which was placed under the supervision of the widow. The account in the Savings Bank was used in this connection.

There is no direct testimony as to the conditions and circumstances under which the cards were signed and filed with the banks. The bookkeeper in the Savings Bank states that it was the custom to check accounts with the signature cards and have them correspond. That probably this card was sent to the Murdochs for signature and that it was received by the bank February 10, 1942. The existence of the card in the files of the National Bank at the time Murdoch died is all the record shows.

The cards, similar in form, except as above noted, state in part as follows:

'The undersigned joint depositors, hereby agreed each with the other and with the above bank that all sums now on deposit heretofore or hereafter deposited by either or both of said joint depositors with said bank to their credit as such joint depositors with all accumulations thereon, are and shall be owned by them jointly, with rights of survivorship and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either of the survivor shall be valid and discharge said bank from liability.'

While appellant urges several grounds for reversal, they all boil down to the question of the correctness of the Court's finding of 'no intention to create such an account'.

There is no dispute between the parties as to the legal question involved. This court recognizes that joint tenancies with right of survivorship may be created in bank accounts. The question has been before us under varied situations. In the case of Taylor v. Grimes, 223 Iowa 821, 273 N.W. 898, we held that the mere opening of a joint account, subject to the check of each party does not in and of itself create a joint tenancy. In the case of Sinift v. Sinift, 229 Iowa 56, 293 N.W. 841, we held that the existence or nonexistence of a joint tenancy with right of survivorship, dependent upon the intention of the parties. In neither of the cited cases was there a written agreement between the Bank and the parties. In the cited cases, evidence showing the situation was received and considered. There was no question of contract involved.

In the case of In re Winkler's Estate, 232 Iowa 930, 5 N.W.2d 153, we had before us a writing very similar to the one in the instant case. The case was tried on a stipulation of facts and the Court found a joint tenancy existed. Referring to the written agreement, we said at page 937 of 232 Iowa, at page 157 of 5 N.W.2d: '* * * Here we have the instrument creating the joint tenancy declaring in express terms the rights of the parties. The card, which we regard as a contract, shows all the essential features of joint tenancy.' (Italics supplied.) We also said therein at page 938 of 232 Iowa, at...