Kaufman v. Kaufman

• Decision Date: 17 May 1962
• Docket Number: No. 36150,36150
• Court: Washington Supreme Court
• Parties: Viola KAUFMAN, a widow, Respondent, v. Lowell Robert KAUFMAN, Appellant, and Yakima City and County Employees Credit Union, a Washington corporation, Additional Defendant.

Page 1

60 Wn.2d 1

371 P.2d 535

Viola KAUFMAN, a widow, Respondent, v. Lowell Robert KAUFMAN, Appellant and Yakima City and County Employees Credit Union, a Washington corporation, Additional Defendant.

No. 36150.

Supreme Court of Washington, Department 2.

May 17, 1962.

Gordon Hanson, Yakima, for appellant.

Felthous & Brachtenbach, Selah, for respondent.

HAMILTON, Judge.

This is an action for a declaratory judgment, to determine the ownership of a joint account in the Yakima City and County Employees Credit Union.

The action was initiated by respondent, Viola Kaufman, the surviving spouse of Earl Kaufman, deceased, against appellant, Lowell Robert Kaufman, decedent's son by a former marriage. The Yakima City and County Employees Credit Union was joined as an additional party defendant. Decedent's estate is not a party to this action.

The conflicting claims to the account in the credit union revolve around a change, prior to the death of Earl Kaufman, from a joint account with survivorship, standing in the names of Earl and Viola Kaufman, to a joint account with survivorship, standing in the names of Earl and Lowell Robert Kaufman.

From a judgment favorable to the surviving spouse, the son appeals.

The essential facts, in chronological order, appear to be:

On June 16, 1956, Earl and Viola Kaufman were married; Mr. Kaufman was regularly employed, the holder of several income-producing investments, and, except as hereinafter noted, maintained three cash actions--a checking account, and two savings accounts with the Home Federal Savings and Loan Association of Yakima: No. 2216, in his own name, and No. 3439, in his name as trustee for Lowell Robert Kaufman (there is no evidence or contention that appellant ever owned or deposited any funds in this account); Mr. and Mrs. Kaufman moved into Mrs. Kaufman's home, where they continued residing until Mr. Kaufman's hospitalization in November, 1959, with Mr. Kaufman making the mortgage payments and otherwise providing the living.

On February 25, 1957, Mr. Kaufman closed out Home Federal Savings and Loan Association account No. 3439, which had a then balance of $1,598.42, and with said sum a new account, No. 4366, in the same depository, was opened in the names of Earl and Viola Kaufman. At this time, both Mr. and Mrs. Kaufman signed a membership application, providing, in part:

'* * * for the issuance of evidence of membership in the approved form in the joint names of the undersigned as joint tenants with the right of survivorship and not as tenants in common. * * *'

A pass book to this account, which was, until the latter part of 1959, kept available to both, was then issued in the names of and entitled:

'EARL & VIOLA KAUFMAN AS JOINT TENANTS WITH THE RIGHT OF SURVIVORSHIP AND NOT AS TENANTS IN COMMON.'

This account, thereafter, with one withdrawal of $930, increased to $2,800.34.

On July 3, 1959, the sum of $2,000 was withdrawn from this account the deposited with additional party defendant credit union, in account No. 787, Mr. and Mrs. Kaufman then signing a membership card, reading as follows:

'JOINT SHARE ACCOUNT AGREEMENT

'The YAKIMA FIREMAN'S CITY EMPLOYEES Credit Union is hereby authorized to recognize any of the signatures subscribed hereto in the payment of funds or the transaction of any business for this account. The joint owners of this account hereby agree with each other and with said Credit Union that all sums now paid in on shares or heretofore or hereafter paid in on shares by any or all of said joint owners to their credit as such joint owners with all accumulations thereon are and shall be owned by them jointly with right of survivorship and be subject to the withdrawal or receipt of any of them and payment to any of them or the survivor or survivors shall be valid and discharge said Credit Union from any liability for such payment. Said joint owners do further agree that any amounts added to this account by reason of any Life Insurance shall be paid to the surviving joint tenant or joint tenants who are hereby designated as the beneficiary or beneficiaries of such insurance.

'Any or all of said joint owners may pledge all or any part of the shares in this account as collateral security to a loan or loans.

'The right or authority of the Credit Union under this agreement shall not be changed or terminated by said owners, or any of them except by written notice to said Credit Union which shall not affect transactions theretofore made.

'Dated: July 3, 1959

'Joint Account No. _____

[signed] Earl E. Kaufman

'Member's Signature

'[signed] Mrs. Earl E. Kaufman

________*s

Joint Owners

'CONSENT OF SPOUSE

'(To be completed if joint tenant or joint tenants are other than the spouse of member)

'Approved and consented to

'Signature of Spouse ________

'Dated: _____ 19__

'Spouse of ________ On November 5, 1959, Mr. Kaufman was hospitalized for a heart condition.

On, or subsequent to, November 18, 1959, appellant contacted an attorney for his father, following which Mr. Kaufman carried on discussions with the attorney relative to a divorce and changing his will.

On December 14, 1959, appellant appeared at the credit union office and orally advised that his father wished to change account No. 787 to a joint account between Earl and Lowell Robert Kaufman. At that time, appellant, in response to inquiry, advised the credit union that Earl and Viola Kaufman were 'in the process of being divorced' (according to his testimony) or 'were divorced' (according to the testimony of the credit union witness). He was thereupon given a card identical to the one hereinabove set forth to be signed by his father and himself.

On December 15, 1959, appellant returned the card, signed by his father and himself, and, thereafter, without the knowledge or consent of respondent, account No. 787 was changed on the books of the credit union to show appellant, instead of respondent, as the 'joint owner' with Earl Kaufman. So far as the record shows, the pass book, being identified only by the number of the account, was neither changed nor reissued.

On December 28, 1959, Earl Kaufman verified a divorce complaint, which was then served on respondent. At the same time, he executed a new will devising all of his property to his two sons.

On February 19, 1960, respondent served and filed a motion, affidavit, and order to show cause in the divorce proceeding, seeking monthly support, temporary attorney's fees, and costs, listing, in support thereof, the community bills, her costs of living, and the assets 'owned by my husband,' which included the credit union account.

On February 22, 1960, Earl Kaufman died, and, thereafter, upon notice from respondent as to the marital status, the credit union 'froze' account No. 787.

The trial court, following three days of testimony, rendered an oral decision, and subsequently entered findings of fact, finding, inter alia: (a) the funds used in opening credit union account No. 787 were joint funds of Earl and Viola Kaufman; (b) the form and content of the 'joint Share Account Agreement' card, including the 'Consent of Spouse' portion, had been adopted by the credit union, and was in regular use for all such accounts; (c) Earl and Viola Kaufman voluntarily executed said agreement and were bound thereby; (d) appellant was advised, by the credit union, that the requested change in account No. 787 required the consent of respondent; (e) appellant falsely represented that Earl and Viola Kaufman were divorced; and (f) but for such misrepresentation the credit union would not have permitted the change, without the consent of respondent.

From its findings, the trial court, in essence, concluded: (a) the purported change of December 15, 1959, was null and void; and (b), as between the parties, respondent was the owner and entitled to the proceeds of credit union account No. 787.

Appellant makes some twenty assignments of error directed to the trial court's findings, conclusions, and judgment, and to its refusal to enter appellant's proposed findings of fact and judgment. In his brief and argument, however, appellant condenses such assignments to eight contentions, which, in turn, may be reduced to essentially two principal questions: (1) what was the status of the account in question prior to December 14, 1959; and (2) did the action of the appellant and Earl Kaufman, on December 14 and 15, 1959, constitute a change in the status of the account.

As a prelude to answering the questions presented by appellant's assignments, an examination of the prior decisions of this court demonstrates we have held:

(1) In the formation of any account involving more than one depositor, two transactions are involved, to which all parties must, expressly or constructively, assent: The transaction between the depositors, and the transaction between the depositors and the depository. Munson v. Haye, 29 Wash.2d 733, 189 P.2d 464.

(2) The creation of an account in the nature of a joint tenancy, with the right of survivorship annexed, depends upon the intent of the parties; and, as between the depositors, the making of a deposit, in the nature of a joint tenancy with survivorship, gives rise to a rebuttable presumption of the requisite intent, both during the lifetime of the codepositors, and, except where otherwise provided by statute, following the death of one. Munson v. Haye, supra; In re Green's Estate, 46 Wash.2d 637, 283 P.2d 989; In re Webb's Estate, 49 Wash.2d 6, 297 P.2d 948.

(3) That, conditioned upon the intent of the parties, such account may be created by: (a) express contract, with or without enabling statutes (i. e., RCW 30.20.015, banks; RCW 31.12.140, credit unions; RCW 32.12.030, mutual savings banks; RCW 33.20.030, savings and loan associations), and despite the statute (RCW 11.04.070) abolishing the right of survivorship as an incident of joint tenancy (In re Ivers' Estate, 4 Wash.2d 477, 104 P.2d 467; Tacoma Sav. & Loan...