Mitts v. Williams

• Decision Date: 03 December 1947
• Docket Number: No. 24.,24.
• Citation: 319 Mich. 417,29 N.W.2d 841
• Parties: MITTS v. WILLIAMS.
• Court: Michigan Supreme Court

319 Mich. 417

29 N.W.2d 841

MITTS

v.WILLIAMS.

No. 24.

Supreme Court of Michigan.

Dec. 3, 1947.

Appeal to Supreme Court from Circuit Court, Kent County; Leonard D. Verdier, Judge.

Suit by Clifford A. Mitts, Jr., administrator of the estate of Sarah Jane Malco, deceased, against Flora Williams to recover money alleged to belong to the estate. From an adverse judgment, plaintiff appeals.

Judgment reversed and cause remanded with directions.

Before the Entire Bench.

A. Brooks, Smith, of Grand Rapids, for plaintiff-appellant.

John M. Dunham, of Grand Rapids, for defendant-appellee.

CARR, Chief Justice.

Plaintiff in this case, as administrator of the estate of Sarah Jane Malco, brought suit in the circuit court to recover money alleged to belong to the estate, said money consisting of the proceeds of a savings account in the Old Kent Bank of Grand Rapids. Mrs. Malco died October 13, 1945. Prior to her death the account stool in the joint names of Mrs. Malco and her daughter, the defendant in the case. After the mother's death defendant drew from the bank the balance of $1,453.29 remaining in the account. Plaintiff alleged in his declaration that the money was the sole property of Mrs. Malco and was not deposited with the intent that defendant should acquire any interest therein, but rather for the purpose of having defendant act as her mother's agent in the withdrawal of funds for the use of the mother during her lifetime. Defendant in her answer denied any knowledge on her part of the intent on the part of Mra. Malco alleged in the declaration. Following the trial judgment was entered for defendant and plaintiff has appealed.

Defendant did not offer proofs in the circuit court, relying on 3 Comp.Laws 1929, § 12063, as amended by Act No. 286, Pub.Acts 1937, Comp.Laws Supp.1940, § 12063, Stat.Ann. § 23.303. Said section reads as follows:

‘Sec. 3. When a deposit shall be made, in any bank by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.

‘When a deposit has been made, or shall hereafter be made, in any banking institution transacting business in this state, in the names of two or more persons, payable to either or the survivor or survivors, such deposit or any part thereof or any interest or dividend thereon and any additions thereto, made by any one of the said persons, shall become the property of such persons as joint tenants, and the same shall be held for the exclusive use of the persons so named and may be paid to any one of said persons during the lifetime of said persons or to the survivor or survivors after the death of one of them, and such payment and the receipt or acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said banking institution for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposits in accordance with the terms thereof.

‘The making of the deposit in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding, to which either such banking institution or surviving depositor or depositors is a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.’

Under the statute as amended the making of a deposit of the character here in question in the joint names of two or more persons is merely prima facie evidence of an intention to vest title in the survivor or survivors. It has accordingly been held by this court in prior decisions that the making of a deposit, or deposits, in the manner indicated creates a rebuttable presumption, which may not be weighed against competent evidence. Thus, in Allstaedt v. Ochs, 302 Mich. 232, 4 N.W.2d 530, 532,5 N.W.2d 433, it was said: ‘The creation of the joint bank accounts by the deceased did not conclusively establish title thereto in the survivor but merely created a presumption of ownership in the survivor which is rebuttable by competent evidence to the contrary. Van't Hof v. Jemison, 291 Mich. 385, 289 N.W. 186. The presumption created by the statute has no weight as evidence when challenged by rebutting testimony. Hill v. Hairston, 299 Mich. 672, 1 N.W.2d 34.’

Of like import is Manufacturers National Bank v. Schirmer, 303 Mich. 598, 6 N.W.2d 908. In the absence of competent proof sufficient to permit the issue to be determined on the basis of the facts the presumption is controlling. Meigs v. Thayer, 289 Mich. 680, 287 N.W. 342;Frank v. Schultz, 295 Mich. 714, 298 N.W. 374;Maahs v. Maahs, 307 Mich. 549, 12 N.W.2d 335;Jakobowski v. Bacalia, 314 Mich. 678, 23 N.W.2d 125. The question in the instant case is therefore whether the competent evidence offered by plaintiff on the trial was of such character as to establish with the requisite degree of certainty that the deposit was made in the names of the parties jointly for the purpose claimed by plaintiff, and with the intention and understanding that defendant should have no interest therein.

An employee of the bank in which the account was carried testified, without objection, that under date of March 22, 1943, the sum of $1,560.25 was deposited in an account opened on that date in the names of Sarah Malco and Mrs. Isaac Wilton. This account was closed on May 28, 1945, at which time the balance was $1,562.29. On the same day that said account was closed the account in question in this case was opened in the names of Sarah Jane Malco and Mrs. Flora Williams, jointly, the amount of the deposit being identical with the final balance in the prior account. The witness further testified to two withdrawals from this account, one in the sum of $109 on October 8, 1945, and the other of the balance remaining on November 7, 1945, the last withdrawal being on a check signed by defendant. Thereupon the account was closed by the bank.

Plaintiff also offered in his behalf the testimony of Mrs. Etta J. Wilton, previously taken in a proceeding before the probate court of Kent county, who testified that in March of 1943, an account was opened in the bank in the joint names of Mrs. Malco and the witness, stating that this was done at the request of Mrs. Malco because the latter had some money that she wished to put in the bank and desired to ‘fix it so we could draw the money out for her because she wasn't always able to do ti.’ The witness further testified that Mrs. Malco kept possession of the bank book, except when she desired Mrs. Wilton and her husband to go to the bank and draw money for Mrs. Malco. Although counsel for defendant objected, and the court indicated that he considered the objection well founded, Mrs. Wilton stated in substance that the money in the account belonged to Mrs. Malco. Also received, but as part of a separate record, was the testimony of this witness as to a conversation occurring about the first of December, 1944, between Mrs. Malco and the defendant, and what the witness did pursuant to such conversation, said testimony being as follows: ‘Mrs. Malco then said to Mrs. Williams, ‘I was telling Mrs. Wilton that I thought maybe they better turn my book and will over to you and let you look after it.’ Mrs. Williams said, ‘Why, aren't they doing all right’? She said, ‘Certainly, but they are old and are not able to get out, they are not well, and they have no car, and have to pay bus fare, and you have a car;’ and so then we went over the next week, December, 5th, 1944, and I took the bankbook and the will along, and turned it over to her, and that it the last I know...