McManis v. Keokuk Sav. Bank & Trust Co.

• Decision Date: 02 August 1948
• Docket Number: 47257.
• Parties: McMANIS v. KEOKUK SAV. BANK & TRUST CO. et al.
• Court: Iowa Supreme Court

33 N.W.2d 410

239 Iowa 1105

McMANIS v. KEOKUK SAV. BANK & TRUST CO. et al.

No. 47257.

Supreme Court of Iowa

August 2, 1948

Rehearing Denied Sept. 24, 1948.

Appeal from District Court, Lee County; J. R. Leary, Judge.

J. O. Boyd and Charles P. Beard, both of Keokuk for appellant.

G L. Norman and H. F. Martin, both of Keokuk, for appellee.

OLIVER Justice.

The record on appeal does not comply with the Rule of Civil Procedure 340. It is in three parts: (1) Appellant's Record on Appeal, (2) Appellee's Amendments to Record on Appeal (3) Objections to Amendments to Record on Appeal. The order of the trial court recites that 1, 2 and 3 'be now settled as the true record for consideration on appeal.' This does not comply with the provision of R. C. P. 340(c) that the record be settled in the trial court. Furthermore, each of the corrections, substitutions or additions to the proposed abstract, referred to in R. C. P. 340(c) should be made by addition, correction or deletion and substitution, inserted at the proper place therein. Pfeffer v. Finn, Iowa, 30 N.W.2d 481.

Plaintiff Lee R. McManis was a son of Flora Kammerer who died intestate in 1946, survived by four children. She had opened the bank account in March, 1944, and her name alone appeared on the signature card, pass book and bank records. In August, 1944, the following instrument (signature card), Exhibit A, was executed and attached to the original signature card in the files of the bank:

'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 The entire account or any part thereof may be withdrawn by, or upon the order of, either of us or the survivor.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.

Lee R. McManis

Mrs. Flora Kammerer.'

The bank added plaintiff's name on the depositor's pass book and 'put on the joint account stamp' so that it read, 'Lee R. McManis or Mrs. Flora Kammerer as joint tenants with right of survivorship and not as tenants in common.' The ledger sheets of the account were changed to show both names.

After the death of Flora Kammerer her administratrix notified the bank her estate claimed the account. Payment was refused plaintiff. He brought this action against the bank and administratrix. Defendant bank claimed no interest in the account. It may be here noted that the form of Exhibit 'A' was identical to that in In re Estate of Winkler, 232 Iowa 930, 5 N.W.2d 153. The bank was the same, the procedure the same and the two cases quite similar.

The administratrix pleaded the execution of the signature card was for convenience only and that decedent intended withdrawals during her lifetime would be used for her benefit and the balance remaining in the account at her death divided among her four children. Appellant sought to prove this pleaded defense by testimony decedent formerly had a joint bank account with a daughter, that decedent stated the joint account with plaintiff was established for her convenience because she was not physically able to go to the bank and that she wanted her children to share equally in her estate after payment to plaintiff of rent for the apartment owned by him which she occupied. There was testimony for plaintiff that decedent said she wanted plaintiff to have the bank account, that she frequently discussed the account involved in the case of In re Estate of Winkler, supra, with Louis Winkler, a neighbor and said to him, 'I fixed a survivor account so there wouldn't be any more argument over it, I don't want another Winkler case.'

The trial court rendered judgment for plaintiff, holding Exhibit 'A' constituted a contract between the parties and expressed a clear intent to create a joint tenancy, that there was no competent evidence of an intent different from that indicated in Exhibit 'A', and that the reason behind its execution was immaterial.

I. Most of the assignments of error are answered by In re Murdoch's Estate, Iowa, 29 N.W.2d 177, 179, which refers to the rule that 'the wording of a clear cut and unambiguous contract must control in construing it' and quotes, 'but when such intent (of the parties) is evidenced by a written agreement, the question of intention ceases to be an issue and the courts are bound by the agreement.' Continuing, the decision states:

'We held in the Winkler case, supra, that such an agreement as we have here constituted a contract, consideration being presumed since it was in writing. That it was an agreement declaring in express terms the rights of the parties. We view the present writings,...