Martin's Estate, In re

• Decision Date: 09 January 1968
• Docket Number: No. 52792,52792
• Citation: 261 Iowa 630,155 N.W.2d 401
• Parties: In relation to the ESTATE of William F. MARTIN, Deceased. John W. MARTIN and Colleen McCreery, Objectors-Appellants, v. Elmer MERTZ, Executor, and Isal Barber and Guy A. Barber, Claimants, Appellees.
• Court: Iowa Supreme Court

Page 401

155 N.W.2d 401

261 Iowa 630

In relation to the ESTATE of William F. MARTIN, Deceased John W. MARTIN and Colleen McCreery, Objectors-Appellants, v. Elmer MERTZ, Executor, and Isal Barber and Guy A. Barber, Claimants, Appellees.

No. 52792.

Supreme Court of Iowa.

Jan. 9, 1968.

Jack W. Rogers, Des Moines, for appellants.

Glenn M. Bradley, Sigourney, for appellees Isal Barber and Guy A. Barber.

Harry L. Snakenberg, Sigourney, for appellee Elmer Mertz.

RAWLINGS, Justice.

A niece and nephew of William F. Martin, deceased, filed objections to executor's final report. Trial court held adverse to objectors and they appeal. We affirm in part, reverse in part.

April 10, 1965, William F. Martin, sometimes hereafter referred to as decedent or Martin, then 83, died testate in Keokuk County. His will was admitted to probate April 29, 1965. The same day Elmer H. Mertz qualified as executor.

John W. Martin and Colleen McCreery, niece and nephew respectively of decedent, challenged the executor's final report.

In so doing they protested, (1) the right of Isal Barber, joint surviving payee, to proceeds of a bank deposit; (2) allowance of claim filed by Guy A. Barber; and (3) grant of a fee to the executor.

From February 13, to March 5, 1965, decedent lived in the home of his niece Isal Barber and her husband Guy, at Hayesville.

Except for this three week period decedent lived in a nearby one room frame building. He had there only the barest of necessities, being frugal to the point of miserliness. The Barbers often provided him meals and transportation. He seldom had enough food in his living quarters. They usually did his laundering.

At one time, about 1962, some friction developed between Martin and the Barbers but this was apparently forgotten before decedent started living in the Barber home as aforesaid.

The trial court found there was competent evidence disclosing Mertz received from Martin the key to his bank box sometime prior to March 5, 1965, with instructions to issue the certificate here in question.

The record discloses that on March 9, 1965, maturity date of certificate #26302 payable to Martin alone, the bank issued renewal certificate #27691 payable to W. F. Martin Or Isal Barber.

After Mertz had qualified as executor, Isal was paid $4500 on the joint certificate, with balance withheld for inheritance tax. See section 528.64, Code, 1962.

To the extent here material decedent's will, prepared in 1960 by Mertz, provided the corpus of his estate go ultimately to Colleen McCreery, Fort Morgan, Colorado, and John W. Martin, Des Moines, Iowa. Gross value of the estate is $28,863.

The claim of Guy A. Barber in the sum of $561.25 is for meals, laundry services and transportation provided decedent from April 1958, until March 1965.

Trial court ordered, (1) Isal Barber is entitled to retain proceeds of the certificate of deposit; (2) Guy A. Barber's claim be allowed in the sum of $300; and (3) the executor be granted a fee of $697.26.

I. All matters here involved were submitted, tried and determined by the trial court as a proceeding entirely in equity. The appeal is likewise presented.

Under these circumstances it will be considered by us de novo. See rules 344(a)(3) and 344(f)(7), R.C.P., and Henderson v. Hawkeye-Security Ins. Co., 252 Iowa 97, 100, 106 N.W.2d 86. But see section 633.33, Code, 1966.

In that regard a statement contained in Luse v. Grenko, 251 Iowa 211, 214, 100 N.W.2d 170, 172, is here appropriate: 'Although our review is de novo we give weight to the trial court's findings. Groves v. Groves, 248 Iowa 682, 692, 82 N.W.2d 124, 130, and citations. Indeed, where similar issues were involved we have said, 'We deem this a proper case for us to lean heavily on the judgment of the trial court, even though we try it on appeal de novo.' Luebke v. Freimuth, 248 Iowa 58, 67, 78 N.W.2d 473, 479.'

At the same time our review is confined to those propositions asserted and argued in support of a reversal. Steele v. Northup, 259 Iowa 443, 143 N.W.2d 302, 304--305, and citations.

II. All evidence presented as to conversations and transactions between Martin and Mertz, executor, with ruling reserved on objections, was ultimately excluded by the court under our dead man statute. Sections 622.4 and 622.5, Code, 1962; In re Estate of Lenders, 247 Iowa 1205, 1211--1212, 78 N.W.2d 536; In re Estate of Conner, 240 Iowa 479, 488--492, 36 N.W.2d 833; 97 C.J.S. Witnesses § 155, page 596; and 58 Am.Jur., Witnesses, sections 299--303, pages 185--187.

III. However the record discloses competent evidence to the effect that sometime just prior to March 5, as Mertz was passing the Barber home one noon, Martin rapped on the window and motioned for Mertz to come in. Martin was then alone and the two men talked. In this regard see O'Dell v. O'Dell, 238 Iowa 434, 447--448, 26 N.W.2d 401.

Also, Martin's box was opened on or about March 9, single payee certificate #26302 removed, and alternate payee certificate #27691 then placed in the depository. There were other certificates in the box payable to Martin alone.

In addition the bank records, properly identified and admitted in evidence, disclose certificate #27691 was issued by the bank in the regular course of business. See section 622.28, Code, 1962.

Furthermore, no showing whatsoever is made upon which to base a binding there existed any confidential or fiduciary relationship between Martin on one hand, and the Barbers of Mertz on the other. Neither is there any basis upon which to conclude Mertz acted other than in good faith, or that he or the bank stood to profit in any degree by virtue of possible benefits conferred upon Barbers by the decedent. See Knigge v. Dencker, 246 Iowa 1387, 1392--1393, 72 N.W.2d 494; Menary v. Whitney, 244 Iowa 759, 764--765, 56 N.W.2d 70; and 24 Am.Jur., Fraud and Deceit, section 256, page 88. The trial court found no indicia of fraud or overreaching by Mertz or Isal Barber. We are satisfied that finding is factually consistent with the record.

From the foregoing it may reasonably be inferred: Martin delivered his bank box key to Mertz, the box was opened, and certificate #26302 being removed was replaced by certificate #27691, all in accord with Martin's knowingly expressed intent and desire. See Stenberg v. Buckley, 245 Iowa 622, 626--627, 61 N.W.2d 452.

IV. The trial court determined issuance of certificate of deposit #27691 constituted a valid Gift to Isal Barber, vesting in her all right to the proceeds.

In view of our more recent pronouncements, it is evident this result is correct though based upon an erroneous premise.

In that regard we said in McCoy v. Martin, 257 Iowa 146, 148, 131 N.W.2d 783, 784: 'If it is a case in which the learned court was right for a wrong reason, it was nevertheless right.' See also Houlahan v. Brockmeier, 258 Iowa 1197, 1203, 141 N.W.2d 545.

V. Referring now to the matter of rights under a bank deposit certificate, or book, payable to one named party or another, our early cases were determined upon the relatively rigid and unrealistic gift or trust theory.

However, O'Brien v. Biegger, 233 Iowa 1179, 11 N.W.2d 412, in adopting a tripartite contract approach, held either the gift or joint tenancy concept could be employed to support the survivor's claim in a joint bank account; an account contributor may retain control of the indicia of deposit; and a noncontributing party need sign no agreement.

Later, in the case of In re Estate of Murdoch, 238 Iowa 898, 901--902, 29 N.W.2d 177, this court upheld right of survivorship in a joint bank account solely on the contract basis. See also In re Estate of Winkler, 232 Iowa 930, 934, 5 N.W.2d 153.

Our more recent decisions have consistently approved the views expressed in O'Brien and Murdoch, both supra. See In re Estate of Stamets, 260 Iowa 93, 148 N.W.2d 468, and citations.

VI. Here the renewal certificate, placed by Mertz in decedent's bank box, designated the depositors, 'W. F. Martin or Isal Barber * * * payable to the order of self'.

We dealt with a comparable situation in Andrew v. Citizens' State Bank, 205 Iowa 237, 216 N.W. 12. There a mother deposited funds in a bank evidenced by a certificate of deposit 'payable to the order of self or Hazel Pent, daughter'.

Referring only to joint tenancy, this court held Hazel Pent entitled to the proceeds upon death of the mother.

In so holding we said, loc. cit., 205 Iowa 243, 216 N.W.: 'Appellant also insists that the burden was upon Hazel Pent to allege and prove that a gift of the certificate was intended and made to her by her mother. While no evidence was offered for that purpose, we think the necessary inference from matters appearing in the record is that * * *. The certificate was lawfully payable to her (Hazel Pent) after her mother's death upon the surrender thereof to the bank issuing it. Section 9267, Code of 1924. (Section 528.64, Code, 1962) No other reason for the mother's making the certificate payable to herself or daughter than that she intended her to receive the money, unless paid out on her own order, is suggested. The fact that the certificate remained unpaid and unchanged is some evidence of the mother's intention. The record discloses neither pleading nor proof in any way denying or explaining the purpose and intention of the mother.' (Emphasis supplied)

And, if funds are payable to an 'or' survivor pursuant to a bank deposit certificate under the joint tenancy doctrine, the same result will surely obtain with as much if not greater force and effect by application of the tripartite contract or third party beneficiary concept. A statement in 37 Iowa L.Rev. 293, amply supported by respectable authorities, sets forth both the rationale and demonstrates the ultimate efficacy of this approach. 'The development of the contract theory may be said to have begun in Massachusetts in 1916. (Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371) It...