In re Winkler's Estate

• Decision Date: 11 August 1942
• Docket Number: 45896.
• Citation: 5 N.W.2d 153,232 Iowa 930
• Parties: In re WINKLER'S ESTATE.
• Court: Iowa Supreme Court

5 N.W.2d 153

232 Iowa 930

In re WINKLER'S ESTATE.

No. 45896.

Supreme Court of Iowa

August 11, 1942

Rehearing Denied Nov. 27, 1942.

J. O. Boyd, of Keokuk, for appellant.

John E. Newkirk, of Keokuk, for appellee.

HALE Justice.

The facts in this case were stipulated and are substantially as follows The applicant, Carl Winkler, was the brother of Katherine Winkler, deceased, and they were the children of Theresa Winkler who died intestate February 16, 1937. On December 13 1935, the Keokuk Savings Bank & Trust Company issued passbook No. 9801 to Theresa Winkler and Katherine Winkler and in the original signature card, in possession of the bank, were the words stamped: "as joint tenants with the right of survivorship and not as tenants in common." On December 24, 1937, Carl Winkler and his sister signed another card called a "Joint Account Payable to Either or Survivor." This additional signature card, attached to the original card and dated December 24, 1937, is as follows: "Joint Account Payable to Either or Survivor. We agree and declare that all funds now or hereafter deposited in this account are and shall be our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common, and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn by or upon the order of either of us or the survivor. It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives. Katherine Winkler, Carl Winkler."

The sister Katherine Winkler died intestate May 11, 1941, and D. J. Hemmy was appointed administrator of her estate. Katherine had rented a safety deposit box and had the key to this box in her possession at the time of her death, and in this box the passbook No. 9801 was found by the administrator. By stipulation it was agreed that at all times the amount of money reported in the account, No. 9801, was the property of Theresa Winkler and Katherine Winkler from the date of opening the account until the death of Theresa Winkler in 1937 when it became the property of Katherine Winkler whose property it remained until December 24, 1937, when Carl's name appeared on the account for the first time.

The key to the safety deposit box was not obtained from the applicant but from his brother Louis Winkler. The request of the applicant to the court is that an order issue directing D. J. Hemmy, as administrator of the estate of Katherine Winkler, deceased, to turn over to this applicant the bankbook hereinabove described and for such other and further orders as may be proper.

On the facts so stipulated, the court held, in the action which was tried as an action at law, that Katherine Winkler had always retained the passbook, and her failure to deliver it showed her intent not to make a gift thereof, and held that the fund represented by the bankbook belongs to the estate of Katherine Winkler and the application of Carl Winkler should be denied. From this judgment of the court rendered October 28, 1941, the applicant filed a motion to vacate the findings in judgment and motion in arrest of judgment. These motions were overruled and applicant appeals.

The applicant urges that the court erred in holding that the undisputed facts did not support a joint tenancy, and in holding that before the parties could create a joint tenancy, it was necessary to establish as a fact that Katherine Winkler intended to make a gift of the bank account to Carl Winkler, and also in holding that there should be a transfer of the fund in the bank account from Katherine Winkler to Carl Winkler and for a valuable consideration. And also it is claimed that there was error in holding that Carl Winkler was not entitled to the fund evidenced by the passbook because the passbook was in the possession of Katherine Winkler at the time of her death.

The question in the case is whether or not under the facts there was created a joint tenancy of the deposit. If there was no such joint tenancy, then the appellant, the applicant, must fail. If there was such joint tenancy, there is no evidence that it was in any way defeated.

It is stipulated that after the death of her mother, the deposit was the property of Katherine Winkler until December 24, 1937, the date of the execution of the signature card. The administrator suggests in argument that there is no showing that the card was actually signed. Of this fact, however, there appears little doubt. It was a signature card, introduced in the trial as an exhibit, and was so referred to. The judge had the exhibit for inspection and his opinion refers to it as signed. We may conclude that it was so signed.

"An estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship * * *." 14 Am.Jur. p. 79, Sec. 6. It may exist in almost any kind of property, including bank accounts. Originally favored at common law, it is not so favored now, but it is recognized by the courts of this state. Wood v. Logue, 167 Iowa 436, 149 N.W. 613, Ann.Cas.1917B, 116; Hruby v. Wayman, 1941, 230 Iowa 653, 298 N.W. 639, and cases cited. Stonewall v. Danielson, 204 Iowa 1367, 217 N.W. 456. The case of Fleming v. Fleming, 194 Iowa 71, 174 N.W. 946, 180 N.W. 206, 184 N.W. 296, recognizes that such an estate may be created, but under the facts in that case held that the relation created was that of partnership rather than joint tenancy. "The grant need not be of a formal character. Thus, the courts of many jurisdictions hold that when a person opens a bank account in the name of himself and another with the intention of allowing each a present right to draw upon the account, with a survivorship in the balance remaining at the death of either, he thereby creates a joint tenancy in the account." 14 Am.Jur. p. 83, Sec. 11; 7 Am.Jur. p. 299 et seq., Sec. 425 et seq. From this definition it is thus seen that intention is a vital element.

Under the heading of Banks, the subject of deposits of two or more depositors is discussed in 7 Am.Jur. pp. 300-308, under the sub-title of "Gift in Praesenti while Retaining Interest in Donor." The text concludes: "If, therefore, the general rule applicable to gifts, that the donor must divest himself of all power over the gift, is to be applied, it seems that the gift in such case must fail. This is the view of some cases. The majority of cases, however, hold that if the intention of the donor is to vest a present right to share in the deposits constituting the joint account, such an act constitutes a gift that can be sustained. This is likewise true, and the transaction constitutes a completed gift, despite a reserved power of revocation. Delivery of the passbook into the hands of the donee is not essential to complete the gift so far as the donee's right of survivorship is concerned. The retention by the donor of the passbook is evidence of an intent not to vest a present interest in the donee, but it is not conclusive; the donee may show by other facts and circumstances an intent to make a present gift of a joint interest in the deposit. If, though, the passbook is delivered to the donee, that fact merits consideration."

Under our holdings, however, that the possession of one would be the possession of both, it would seem unimportant that the book remained in the safety deposit box. The administrator urges in support of his views the fact of delivery and possession. We do not think any manual delivery necessary and in many instances would hardly be possible, or at least not practicable. If the instrument executed was valid, then the possession of the deposit or the book evidencing the deposit of either joint tenant was the possession of the other and it would be immaterial as to who held the actual manual custody. Martin v. Fritz, 194 Iowa 740, 750, 190 N.W. 514; Tucker v. Tucker, 138 Iowa 344, 345, 116 N.W. 119. In re Halaska's Estate 307 Ill.App. 183, 30 N.E.2d 117; Abegg v. Hirst, 144 Iowa 196, 122 N.W. 838, 138 Am.St.Rep. 285.

The question of joint tenancy has been discussed in various decisions of this court. We may note some of the cases. The case of Taylor v. Grimes, 223 Iowa 821, 273 N.W. 898, is cited by both the administrator and applicant. An examination of this case shows that the action for accounting and claimed ownership was based upon a deposit for which the signature card read "First Federal State Bank, Des Moines, Iowa. Below, please find duly authorized signatures which you will recognize in the payment of funds or the transaction of other business on our account. (Date and signatures)." Compare this card with the card hereinbefore set out. The Taylor case was based and tried throughout on...