Kelberger v. First Federal Sav. & Loan Ass'n of La Crosse

• Decision Date: 28 June 1955
• Citation: 270 Wis. 434,71 N.W.2d 257
• Parties: Howard A. KELBERGER, as Administrator of the Estate of Julia Burdick Kelberger, Deceased, Plaintiff and Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF LA CROSSE, a Wisconsin Corporation, and Lydia Burdick, Defendant and Respondent.
• Court: Wisconsin Supreme Court

Page 257

71 N.W.2d 257

270 Wis. 434

Howard A. KELBERGER, as Administrator of the Estate of Julia Burdick Kelberger, Deceased, Plaintiff and Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF LA CROSSE, a Wisconsin Corporation, and Lydia Burdick Defendant and Respondent.

Supreme Court of Wisconsin.

June 28, 1955.

Johns, Roraff, Pappas & Flaherty, La Crosse, for appellant.

Hale, Skemp, Nietsch, Hanson & Schnurrer, LaCrosse, for respondent.

GEHL, Justice.

The record establishes clearly that there was a close relationship between these two ladies and that it was intended by each of them that the accounts to which we have referred, including the one involved on this appeal, should be treated as joint accounts and should go to the survivor in the event of the death of either. The desire of the sisters to pool their assets is further indicated by the fact that each had taken out a life insurance policy naming the other as beneficiary, each had bought a $50 United States savings bond payable to the other, and each took out an accident insurance policy naming the other as beneficiary.

The courts have recognized various theories upon which the rights of a survivor to a fund deposited in the name of the owner and another may be based. Some have held that the survivor's title rests upon a gift, some that it rests upon trust, and others that it rests upon the theory of contract between depositors and the bank. The Massachusetts court has had frequent occasion to, and has frequently held that the right of a named co-depositor to funds deposited by another in a joint deposit rests upon the contract between the depositors and the bank. Chippendale v. North Adams Savings Bank, 1915, 222 Mass. 499, 111 N.E. 371; Perry v. Leveroni, 1925, 252 Mass. 390, 147 N.E. 826; Bedirian v. Zorian, 1933, 287 Mass. 191, 191 N.E. 448; Goldston v. Randolph, 1935, 293 Mass. 253, 199 N.E. 896, 103 A.L.R. 1117; Ball v. Forbes, 1943, 314 Mass. 200, 49 N.E.2d 898. The courts of other jurisdictions have so held. See Annotations at 103 A.L.R. 1123; 135 A.L.R. 993; 149 A.L.R. 879.

By its decision in Estate of Staver, 218 Wis. 114, 260 N.W. 655, 656, this court joined Massachusetts. We said that the facts in that case showed a failure to meet the requirements of a trust because of the lack of a showing of an intention to create one, and that they failed to constitute a gift to Frank J. Staver as survivor because there had been no delivery of the certificates of deposit which had been made payable to "Joseph Staver [the sole depositor] or Frank J. Staver". We held that the funds represented by the certificates passed to Frank J. Staver on the death of Joseph by right of survivorship under the contract of deposit. We held that in such case it is immaterial that the evidence of deposit, such as certificate or passbook, is not delivered to the other named depositor.

In Estate of Skilling, 218 Wis. 574, 260 N.W. 660, the holding in the Staver Case was applied to a savings account payable to the depositor or his son and containing words of survivorship. It was again said that it was immaterial that the passbook had not been delivered to the surviving son and that no joint possession thereof existed.

In Schwanke v. Garlt, 219 Wis. 367, 263 N.W. 176, we rejected the claim of the executor of the will of the depositor, who had named her granddaughter joint owner of a savings account, that the court was without authority to hold as we did in the Staver and Skilling Cases that a bank account payable to two persons or the survivor was governed by the principles of contract; we held again that it was immaterial that the passbook had remained in the exclusive possession of the grandmother and that the granddaughter took by right of survivorship.

This court has not had occasion to consider a case involving some of the circumstances to which the parties refer in support of their respective contentions. They have been considered by the Massachusetts court, and since that court has consistently held, as we have since the Staver Case, that the right of the survivorship is determined upon the principles of contract, we regard the conclusions of that court as being highly persuasive.

The Massachusetts court has held that the determination of the interest which a survivor has in the deposit is dependent primarily upon the intention of the depositor and that this is a question of fact. Buckley v. Buckley, 1938, 301 Mass. 530, 17 N.E.2d 887; Milan v. Boucher, 1933, 285 Mass. 590, 189 N.E. 576; Gibbons v. Gibbons, 1936, 296 Mass. 89, 4 N.E.2d 1019. This court has not used the precise expression but a reading of the cases dealing with the subject makes it clear that whether a contract has been made and what its effect is to be depends essentially upon the intention of the parties, particularly of the depositor.

As we have already pointed out, we have held that to establish the right of survivorship it is not necessary that the survivor shall have had possession of the evidence of the deposit. That is in accord with the holding of the Massachusetts court that possession or the lack of it by the survivor of the evidence of deposit, while competent evidence bearing on the matter of intention, is not a controlling factor. Holyoke National Bank v. Bailey, 1930, 273 Mass. 551, 174 N.E. 230; Splaine v. Morrissey, 1932, 282 Mass. 217, 184 N.E. 670.

The Massachusetts court has not held that under all circumstances may the failure of the survivor to have signed the signature card at the bank be overlooked, but it has said, and we agree, that the failure does not affect his right to the balance if the intent of the parties to create the right of survivorship is clear. Brodrick v. O'Connor, 1929, 271 Mass. 240, 171 N.E. 479.

The Massachusetts court has observed in a number of cases in which it has held that a contract creating the right of survivorship had been established that it had been shown that the non-depositing payee had assented to the arrangement. It has not said that such assent is required for the...