Miller v. Higgins

• Decision Date: 10 November 1961
• Docket Number: No. 42324,42324
• Citation: 366 P.2d 257,188 Kan. 736
• Parties: Orman L. MILLER, Executor of the Will and Codicil of Fern F. Henery, Deceased, Appellee, v. J. C. HIGGINS, Appellant, and Havensville State Bank (Defendant).
• Court: Kansas Supreme Court

Page 257

366 P.2d 257

188 Kan. 736

Orman L. MILLER, Executor of the Will and Codicil of Fern F.

Henery, Deceased, Appellee, v. J. C. HIGGINS, Appellant, and Havensville State Bank (Defendant).

No. 42324.

Supreme Court of Kansas.

Nov. 10, 1961.

Rehearing Denied Dec. 14, 1961.

Syllabus by the Court.

1. Under the provisions of G.S.1949, 58-501, in order to create a joint tenancy with the right of survivorship language must be used to make that intention clear and such creation will ultimately be resolved on the clarity with which the intent of the grantor is expressed under the facts and circumstances of the particular case.

2. In an action involving the ownership of a sum of money in a checking account in a bank, the record is examined, and it is held that the trial court correctly found the evidence insufficient to show that a joint tenancy with the right of survivorship had been created.

Hal C. Davis, Topeka, argued the cause, and W. Kenneth Wilke, Topeka, was with him on the briefs, for appellant.

William Hergenreter, Topeka, argued the cause, and John W. Brookens, Westmoreland, was with him on the briefs, for appellee.

WERTZ, Justice.

This was an action to determine the ownership of $23,666.64 in a checking account in the Havensville State Bank. The plaintiff (appellee), Orman L. Miller, executor of the estate of Fern Henery, initiated this action asserting that the account was an asset of the estate of the deceased and should be distributed according to the general terms of the will and codicil. It is contended by the defendant (appellant), J. C. Higgins, that he had full ownership of this account by virtue of the right of survivorship in joint tenancy. He urged that the joint tenancy could be supported under contract or gift theories. The bank was made a defendant so that it could be directed to pay the proceeds of the account to the rightful owner after a judicial determination.

On the issues joined between the parties the trial court heard the evidence of the respective parties and made findings of fact and conclusions of law. From a judgment in favor of plaintiff, defendant J. C. Higgins appeals.

There is little dispute about the pertinent facts. The trial court found that Fern Henery and W. A. Henery, her husband, prior to the latter's death, maintained a checking account in the Havensville State Bank. On January 24, 1952, after the death of her husband, Fern Henery, a parttime employee of the aforementioned bank, had the name of her brother J. C. Higgins inserted upon the ledger sheet of this account in place of her husband's name. The account then read, 'Fern Henery or J. C Higgins and to the survivor of them upon the death of either.' As a matter of practice the bank, at that time, did not require signature cards and issued pass books only upon request. They considered the ledger primary evidence of ownership. However, the bank, at the request of Fern, did issue a pass book which was identified only in her name. All deposits and withdrawals were made by her and in her name until ten days immediately preceding her death. The bank president as well as the only fulltime employee, Miss McKee, were present when Fern requested the latter to change the account in 1952.

The court further found that Fern made substantial deposits to the W. A. and Fern Henery account and that both she and her husband checked against the account. In 1952, when the account was changed to Fern Henery and J. C. Higgins, all deposits were made by Fern Henery, the deposit slips showing her name only, and the account book had only Fern Henery's name appearing on the title page. All the checks on the account since 1952 were drawn by Fern Henery except four checks written about ten days prior to her death. These four checks were written on Fern's printed personalized check forms and were signed Fern Henery by J. C. Higgins, and two checks were drawn and signed in the same manner after decedent's death. These six checks were written during Fern's last illness and were to pay her hospital and doctor bills.

The court also found that Fern had no other account in the bank from 1952 until her death; that defendant Higgins never actually knew that his name was on the account until about ten days before Fern's death; that Higgins never discussed the joint account with the officers of the bank or with anyone connected with the bank prior to the death of Fern, nor did the bank at any time have a signature card or any other agreement with Higgins; that subsequent to 1952 there was no further discussion of the account between the deceased and any of the bank officials.

The court further found that while the evidence was clear as to the title the deceased desired to have entered on the ledger sheet January 24, 1952, there was no evidence other than the naked wording as to the intention of the deceased as to the ownership of the account or of the rights of defendant Higgins therein. While the president and Miss McKee testified that they considered the account to be joint, they would not have cashed a sizeable check drawn by defendant Higgins without first consulting Fern, and that it was clear from the evidence that there was no express agreement between the deceased and the defendant bank as to the ownership of the account except that which, if any, might be implied from the title of the account itself. It was also clear that there was never any express agreement between the defendant Higgins and the deceased or defendant Higgins and the defendant bank as to the ownership of the account and the rights of defendant Higgins therein.

The trial court was unable to find sufficient evidence to support the naked wording of the ledger and stated:

'While the evidence in this case cannot be said to be either clear or satisfactory, after a careful consideration of all the facts and circumstances, from which the intention of the deceased, or a contract or agreement between all of the parties concerned, could be implied, we cannot find sufficient evidence upon which to base a conclusion that the defendant should be adjudged the owner of the account in question upon any of the theories advanced by him.'

The court concluded that there was insufficient evidence to sustain either a gift or a contract in joint tenancy with right of survivorship in Higgins, and that the money was an asset of the estate, and entered judgment accordingly.

G.S.1949, 58-501 reads in pertinent part:

'Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: * * *.'

Under the express provision of the statute a joint tenancy may be created in personal as well as in real property. (In re Estate of Biege, 183 Kan. 352, 327 P.2d 872, and cases therein cited.) It is unnecessary to historically reiterate the law of joint tenancy, but it is important to emphasize again how 'clear' the intent of the parties must be in finding that joint tenancy was intended.

In Spark v. Brown, 167 Kan. 159, 205 P.2d 938, we said that when one desires to create a joint tenancy with the right of survivorship language must be used to make that intention clear, otherwise it will not be created. (See also Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647, 85 A.L.R. 275; Riggs v. Snell, 186 Kan. 355, 350 P.2d 54; rehearing denied, 186 Kan. 725, 352 P.2d 1056; In re Estate of Swingle, 178 Kan. 529, 289 P.2d 778).

In an article entitled 'Jointly Owned Property and Its Disadvantages,' written by Mr. James D. Dye of the Wichita Bar, and appearing in The Journal of the Bar Association of Kansas (21 J.B.K. 351, 363 [May, 1953, No. 4]), after reviewing several of our cases Mr. Dye stated, 'The issues involved in the Spark and Malone cases do not point up any particular disadvantage in joint ownership but they do emphasize the care and attention required in establishing such ownership where it is in fact intended and desired by the parties.' (p. 363).

Under the provisions of G.S.1949, 9-1205, bank deposits may be made in the names of two or more persons, including minors, payable to either or any of them, or payable to either or any of the survivors or the sole survivor, and such deposits or any part thereof or any interest thereon, may be paid to or on order of any of said persons whether the other or others be living or not; and the receipt, order, or acquitance of the person so paid shall be valid and sufficient release and discharge to the bank for any payment so made. Both Malone v. Sullivan, supra, and Spark v. Borwn, supra, emphasize the fact that the mentioned provisions of the statute were enacted solely for the protection of the bank paying under such agreement. In the Malone case it was stated, 'This statute, however, does not attempt to define the right of a surviving joint depositor as against third parties who may claim an interest in the fund.' (136 Kan. p. 196, 14 P.2d at page 649). (See also Mr. Dye's article 21 J.B.K. 351, 363). In the Spark case we held that this part of the statute (G.S.1949, 9-1205) was designed for the protection of the bank in the making of payments. It has nothing to do with the ownership of the fund as between the two parties.

Defendant Higgins conceded that the aforementioned statute dealing with joint accounts is for the protection of the bank and is of no value in the determination of ownership of such account. The record shows that Fern not only had a pass book issued to hereself alone but that she also used her own printed personalized checks, and that during the period from 1952 to the time of her death she continued to treat the account as her sole property, depositing and withdrawing large sums of money in her own name and for her own business transactions. She had no other checking account.

No useful...