Kirsch v. First Nat. Bank of Watertown, 12853

• Decision Date: 29 October 1980
• Docket Number: No. 12853,12853
• Citation: 298 N.W.2d 71
• Parties: Kenneth Stanley KIRSCH, as Administrator of the Estate of Fred Kirsch, deceased, Plaintiff and Appellant, v. FIRST NATIONAL BANK OF WATERTOWN, Defendant, and Gene W. Kirsch, as Executor of the Estate of Chris Kirsch, deceased, DonnaKirsch, Gene Kirsch and Marlys Kirsch, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 71

298 N.W.2d 71

Kenneth Stanley KIRSCH, as Administrator of the Estate of Fred Kirsch, deceased, Plaintiff and Appellant, v. FIRST NATIONAL BANK OF WATERTOWN, Defendant and Gene W. Kirsch, as Executor of the Estate of Chris Kirsch deceased, DonnaKirsch, Gene Kirsch and Marlys Kirsch, Defendants and Appellees.

No. 12853.

Supreme Court of South Dakota.

Argued March 18, 1980.

Decided Oct. 29, 1980.

Alan L. Austin and J. Douglas Austin of Austin, Hinderaker & Hackett, Watertown, for plaintiff and appellant.

John L. Foley of Foley & Foley, Watertown and Lawrence L. Piersol of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.

YOUNG, Circuit Judge.

This is an appeal from the trial court's decision in a declaratory judgment case wherein the court held that joint ownership had been created in two certificates of deposit. We affirm.

The record shows that Fred and Chris Kirsch were brothers and that each developed, with the aid and assistance of the other, successful farming operations near Watertown, South Dakota. Both brothers were married and both reared children. Fred Kirsch had one adopted son, Kenneth Stanley Kirsch, appellant herein, who instituted the present action on behalf of the estate of Fred Kirsch. ^* Chris Kirsch had two children: a son, Gene Kirsch, who since 1967 had operated the Chris Kirsch farm and assisted Fred Kirsch in his farming operations; and a daughter, Donna Kirsch, who since high school has been receiving periodic treatment at the South Dakota Human Services Center in Yankton, South Dakota. Throughout their lives, Fred and Chris had given monetary aid to each other and often farmed each other's acreage.

For many years Fred Kirsch conducted his financial affairs through the First National Bank of Watertown, South Dakota. In 1974 Fred purchased a $10,000 certificate of deposit through the bank. The certificate was in joint tenancy with Fred's wife, Nettie. In September 1975, Nettie died. Early the following year Fred went to the bank and changed the joint tenancy from himself and his wife to himself and his brother Chris. His long-time banker, Burdette Solum, explained the effect of a joint tenancy to Fred and witnessed the change in the certificate of deposit. At that same time, Fred also purchased a $2,000 certificate of deposit that named "Fred Kirsch or Chris Kirsch" as joint tenants with right of survivorship. Fred Kirsch was an active farmer all his life and died as a result of a farm accident. He was an intelligent farmer who knew his financial affairs and his farming activities. There is no evidence that he did anything unknowingly or unwittingly in relation to these certificates of deposit.

There is the somewhat contradictory testimony from Chris Kirsch, through deposition, that when his brother set about dividing his property among his heirs, he expressed a desire to leave something for Donna Kirsch. The evidence does not indicate that Fred actually informed Chris of the manner in which this might be accomplished. Rather, the evidence shows that, after discovering the certificates, both Gene and Chris Kirsch simply assumed that they had been left for Donna Kirsch's benefit.

In Wagner v. Wagner, 83 S.D. 565, 163 N.W.2d 339 (1968), we adopted the rule that there exists a rebuttable presumption of intent concerning joint accounts:

Although the form of the account is not conclusive, as we said in the cases supra, an account opened in joint names raises a rebuttable presumption that the creator of such an account intended the usual rights ... of survivorship, to attach to it....

83 S.D. at 571, 163 N.W.2d at 342, quoting In re Pfeifer's Estate, 1 Wis.2d 609, 85 N.W.2d 370 (1957). In order to overcome this presumption of intent the party seeking to negate the presumption must do so by evidence "which must be clear and satisfactory." Wagner v. Wagner, supra, 83 S.D. at 571, 163 N.W.2d at 342, quoting In re Pfeifer's Estate, supra.

Appellant contends there is clear and convincing proof in the record showing that this joint tenancy was established for the mere convenience of the depositor, Fred Kirsch, and therefore is void. The only testimony in the record that this was for the convenience of Fred Kirsch was that Donna Kirsch was incompetent and that it would be simpler to leave a certificate of deposit made out as joint tenants with Fred Kirsch and Donna's father, Chris Kirsch, as joint tenants, as opposed to making a will with appropriate trust documents.

In Barbour v. First Citizens Nat. Bank of Watertown, 77 S.D. 106, 86 N.W.2d 526 (1957), we acknowledged that joint accounts are sometimes established for the convenience or benefit of the original depositor, without intending any benefit to the joint payee:

Many joint deposits are...