Michaels' Estate, In re
| Decision Date | 01 February 1965 |
| Citation | 132 N.W.2d 557,26 Wis.2d 382 |
| Parties | In re ESTATE of Helen MICHAELS, a/k/a Helen Mikolajczak, dec'd. Harry MICHAELS, Appellant, v. Walter KRUKE, Adm'r with Will annexed of the Estate of Helen Michaels, dec'd, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Runkel & Runkel, Port Washington, for appellant.
Erwin N. Pauly, Port Washington, John J. Kircher, Port Washington, of counsel, for respondent administrator.
The facts of this case make it unique among the many joint bank account cases which have come before this court.
The account was originally opened in the State Bank of Newburg on September 8, 1942, in the names of Walter Michaels or Helen Michaels with a deposit of $500. The record does not disclose the source of this $500 deposit. At that time there were two Walter Michaels. One was the husband of Helen and the other the sixteen year old son of Walter, Sr. and his wife, Helen. Walter, Sr. and Helen resided and operated a tavern in the unincorporated village of Waubeka in Ozaukee county which is some six to eight miles distant from Newburg. Walter, Sr. died October 25, 1944. At the time of his death there was $508.77 on deposit in the joint savings account. His estate was probated in the county court of Ozaukee county and there also was a separate termination of joint tenancy proceeding with respect to certain property he had owned in joint tenancy with Helen. The joint savings account is not referred to in either the estate or joint tenancy proceeding. Nevertheless, we think the reasonable inference is that the Walter named as one of the two depositors when the original savings account was opened was Walter, Sr. and not Walter, Jr. There are two reasons for this: First, Walter, Jr. was then but sixteen years old and the record discloses no reason why at that time he should have been preferred over his three brothers and one sister, all of whom were older than he. Secondly, the name Walter precedes that of Helen in the bank passbook which is more consistent with Walter being the husband rather than the minor son of the codepositor, Helen.
Some time after the original opening of the account, 'Jr.' was written after the name of Walter in both the passbook and on the bank's ledger sheet. The reason that we conclude it was done after the opening of the account is because it is written with ink of a lighter color than the original words 'Walter or Helen Michaels.' The record is silent as to when this change was made. Thereafter, the word 'Cancelled' was written in ink across 'Walter Jr.' in the passbook and 'Cancelled' was also written in ink slightly below and to the left of 'Walter Jr.' A small arrow was also drawn in ink after this second 'Cancelled' pointing toward the cancellation of 'Walter Jr.' Isselman, an officer of the bank, testified that the writing of the words 'Cancelled' and the drawing of the arrow were done by him and that he made these changes in the passbook on December 16, 1950. He could not recall the incident but 'presumed' it was done at the request of Helen Michaels. At the same time three horizontal lines were drawn through the name 'Walter Jr.' on the bank's ledger sheet and the word 'Cancelled' was written in ink below and to the left thereof together with the date '12/16/50' and an arrow was drawn after the word 'Cancelled' pointing to the 'Walter Jr.' with the three horizontal lines drawn through it.
Thereafter, the words 'or Harry Michaels' were written in ink in the passbook below 'Helen Michaels.' Harry is the son of Helen Michaels, and the brother of Walter, Jr. Mrs. Johnson, daughter of Isselman, testified that she was employed in the bank only in 1951 and 1952 and that these words 'or Harry Michaels' were in her handwriting. She could not recall whether the stamped words appearing below 'or Harry Michaels' which read, 'A joint and several account Payable to either or the survivor,' were placed there by her but presumed they were and that her father was the one who told her to do so. However, Mrs. Johnson did not add any name on the bank ledger sheet covering this account. Thus ever since December 16, 1950 the bank ledger sheets named only Helen Michaels as the depositor. This we deem to be immaterial because the passbook constituted the contract between the depositor and the bank; the ledger sheet was merely the private record of the bank. Isselman testified that bank employees always had been instructed to have the two records (passbook and ledger sheet) correspond.
At the conclusion of the taking of testimony at the hearing Judge LARSON stated:
'I would like the attorneys to look at Exhibit, Harry Michaels' Exhibit No. 1 [the passbook] and ask whether it does not look to them as though this book had on the page bearing the names of the owners the names Walter or Helen Michaels. That later a 'Jr.' was written behind Walter. That after that the word 'cancelled' was written across 'Walter' and 'Jr.' and the word 'Harry Michaels' added to the book.'
Counsel for the administrator with the will annexed and for Walter Michaels, Jr. both agreed with this interpretation of the exhibit, while counsel for Harry Michaels stated he refused to speculate on the sequence of events.
Both Walter, Jr. and Harry testified that they did not learn of the existence of the account until after their mother's death. The passbook was found in a little safe in the tavern at Waubeka which Helen operated from the time of her husband's death in 1944 until her own death in 1961. All deposits and withdrawals after the death of Walter, Sr. had been made by Helen. Walter, Jr. married September 16, 1950, and then left his mother's home which was in the first story of the tavern premises. Harry, who is eleven years older than Walter, Jr., had married in 1943 but lived upstairs in the tavern premises until 1957. There is testimony that Walter, Jr.'s wife had at least one serious quarrel with Helen Michaels. Thus Walter, Jr.'s marriage and leaving his mother's home, and possibly also the quarrel between his wife and mother, provide an explanation of why Helen had Walter, Jr.'s name removed from the passbook as a joint payee on December 16, 1950.
Harry testified that during the years he lived upstairs in the tavern premises he helped tend bar, cut the grass, and took his mother to the doctor and dentist. When asked whether he helped out at the tavern he replied, , which apparently meant that he helped out more than Walter, Jr. or his other brothers and sister. The public administrator was present in person at the hearing and asked Harry this question and received this answer:
Walter, Jr. testified that he also helped tend bar for his mother in the tavern and took her to the doctor and to Milwaukee. Helen Michaels died testate leaving a will dated January 28, 1958, which was duly admitted to probate. All of her estate except a $200 bequest for masses was bequeathed by the residuary clause which reads:
'Because of the extra services rendered to me by sons Harry Michaels and Walter Michaels, I give, devise and bequeath to each of them one-third (1/3) of the residue of my estate, and the remaining one-third I divide equally among all of my children, to-wit: John Michaels, Harry Michaels, William Michaels, Walter Michaels, Jr., and Frances Michaels Witte.'
The total appraised value of her estate, exclusive of the bank account in question, is slightly in excess of $33,500.
The foregoing constitutes a summary of all the evidence which we consider of possible materiality on the issue of whether the administrator with the will annexed or Harry, as the survivor of the two joint payees named in the bank passbook, is entitled to the account. We now turn to the applicable statutes, case law authorities, and writings of experts in the field, to determine whether the result below must be affirmed or reversed.
The only applicable statute is sec. 221.45, Stats., which provides:
'When a deposit has been made or shall hereafter be made, in any bank, trust company bank or mutual savings bank transacting business in this state in the names of 2 persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.'
Estate of Staver (1935), 218 Wis. 114, 260 N.W. 655, is generally regarded as the landmark decision by this court in the field of joint bank accounts. That case broke sharply with prior decisions which had applied concepts of traditional joint tenancy law and of the law governing the creation of gifts. The opinion flatly stated (at p. 120, 260 N.W. at p. 658): 'No question of transfer from the depositor to the intended donee is in any manner involved.' The rationale of the decision was that the survivor done payee succeeded to the account by reason of the contract between the donor depositor and the bank as implemented by sec. 221.45, Stats. 1 Among the cases cited in support of the adoption of this contract theory were Chippendale, Adm'r v. North Adams Savings Bank (1916), 222 Mass. 499, 111 N.E. 371, and Battles v. Millbury Savings Bank (1924), 250 Mass. 180, 145 N.E. 55.
Of particular applicability to the instant case are these further statements made in Estate of Staver (218 Wis. at pp. 122, 124, 260 N.W. at pp. 658, 659):
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