Olson v. Scott

• Decision Date: 24 November 1922
• Docket Number: 3810
• Citation: 61 Utah 42,210 P. 987
• Court: Utah Supreme Court
• Parties: OLSON v. SCOTT et al

210 P. 987

61 Utah 42

OLSON v. SCOTT et al

No. 3810

Supreme Court of Utah

November 24, 1922

Appeal from District Court, First District, Cache County; L. B Wight, Judge.

Action by Martin Olson, as administrator of the estate of Ellen Olson, deceased, against Olive M. Scott and Hilma E. Scott. Judgment for defendants, and plaintiff appeals.

AFFIRMED.

J. C Walters, of Logan, for appellant.

E. T Young, of Logan, and A. E. Bowen, of Salt Lake City, for respondents.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

The plaintiff, as administrator of the estate of Ellen Olson, deceased, instituted this action in the district court of Cache county, Utah, to recover two sums of money which had been deposited by plaintiff's intestate in certain banks, to wit, $ 1,426.70 in the First National Bank of Logan and $ 643.29 in the bank of Thatcher Bros. Banking Company, both of which are situated in Logan City, Utah.

It is alleged in the complaint that at the death of said deceased she was the owner of the money deposited in said banks, and that the amount in each case had been deposited in her name and the name of Olive M. Scott, or to the survivor of either of them. The complaint also alleges that, after the death of said Ellen Olson, defendants withdrew the money so deposited without plaintiff's knowledge or consent and had refused to pay plaintiff the money claiming the same as a gift from the deceased. It is further alleged that the claim of defendants is wrongful and that they are not entitled to the money or any part thereof.

Defendant Hilma E. Scott admits in her answer that the money had been deposited as alleged in the complaint, but denies that she withdrew the same, or any part thereof, or ever had it in her possession or under her control. She also denies that she claims the money in whole or in part.

The defendant Olive M. Scott, answering, admits the form of the deposit and the amount thereof; admits that after the death of deceased she withdrew the amount so deposited; and admits she refused to pay the same to the plaintiff and claims to be the rightful owner thereof. She denies generally the remaining allegations of the complaint, and prays that she be decreed to be the rightful owner of the money.

The case was tried to the court without a jury. The court found the issues in favor of defendant Olive M. Scott and that both defendants were entitled to their costs. Judgment was entered accordingly.

Plaintiff appeals and assigns numerous errors, among which are the following: (1) The court erred in admitting certain evidence over plaintiff's objection; (2) the court erred in finding that there was a gift from deceased to defendant Olive M. Scott for the reason no gift was pleaded in the answer; (3) the court erred in making certain findings in respect to a gift of the money, because they are not sustained by any evidence except incompetent evidence erroneously admitted by the court.

As a matter of orderly procedure, we will first dispose of the question raised as to the insufficiency of defendant's answer.

It will be noted that defendant did not specifically allege that she claimed title by gift. She merely denied plaintiff's ownership and alleged affirmatively that she was the rightful owner. It was not necessary to plead her source of title. Besides this, plaintiff in his complaint specifically alleged that defendant claimed the money as a gift from deceased, and in presenting his case in chief proved the very facts upon which defendant relies as constituting the gift. Even if this were not the case, it is extremely doubtful if there is any merit in this assignment.

In Marra v. Bigelow, 180 Mass. 48, 61 N.E. 275, the court held that under a general denial of plaintiff's title a gift to defendant might be proved.

Plaintiff cites no authority to the contrary, and we know of no reason why the rule adopted in the Massachusetts case should not be applied in the case at bar.

A consideration of the remaining assignments renders it necessary to first give attention to the history of the case as developed by the evidence.

There is no substantial conflict concerning the facts. Omitting details that are immaterial, the evidence tends to show that plaintiff's intestate, Ellen Olson, at the time of her death in 1920, was the surviving wife of Ole Olson who died in May, 1915; that five children were born to them, among whom was the plaintiff and the two defendants; that Ole Olson also had a plural wife by whom he had two children. All of the parties referred to resided in Millville, Cache county, Utah. In 1913 Ole Olson opened an account with the First National Bank of Logan by depositing therein the sum of $ 400 in the name of Ole Olson, Ellen Olson, his wife, or the survivor of either of them. After that date, other amounts were deposited to the credit of the same account until May 9, 1915, when Ole Olson died, at which time the credits aggregated the sum of $ 1,500. The account was continued on the same ledger sheet, but a new passbook was issued in the name of Ellen Olson and the account transferred to her September 1, 1915. No further deposits were made to the account except accumulations of interest. Some time after the transfer to Ellen Olson, she caused a transfer to be made to the credit of Ellen Olson and Olive M. Scott, or to the survivor of either of them. Several withdrawals from this account were made by Olive M. Scott until October 31, 1920, when Ellen Olson died, at which time the balance remaining was $ 1,406.70. There is a discrepancy of $ 20 between the ledger sheet and the books, but the discrepancy is not material to a decision of the question involved. The balance remaining was all drawn out by Olive M. Scott, the last item, $ 1,218.96, on February 14, 1921, at which time the account appears to have been closed and the passbook surrendered to the bank.

The foregoing, in substance, is the testimony in chief of plaintiff's witness, the assistant cashier of the bank. On cross-examination the witness testified that when the account was changed from the name of Ellen Olson she and Olive M. Scott, and her husband, Ernest Scott, came to the bank. A conversation was had between the witness and these parties and also Mr. Crockett, cashier of the bank. Ellen Olson said she wanted Olive M. Scott to have the money and wanted the books fixed so she would have no trouble about it. Witness consulted Mr. Crockett, and they advised Mrs. Olson to put the account in the form which was adopted. There is other testimony concerning this transaction; but, as it also covers the transaction with the other bank, its consideration for the present will be deferred.

The history of the account with the Thatcher Bros. Company, as related by the cashier, is substantially as follows: Ole Olson was a customer of the bank at the time of his death in May, 1915. Shortly after his death, his wife, Ellen Olson, and children came to the bank concerning the money on deposit. The money was turned over to them on their executing an indemnifying bond. On that date, June 30, 1915, there was on deposit to the credit of that account $ 3,219.37. It appears without question that this money was divided between the two wives and all the children, the wives receiving $ 500 each and the children the remainder. Ellen Olson immediately deposited her portion to her own credit in the same bank. She made another deposit of $ 80 in May, 1916. The account remained in her name until February 5, 1916, at which time there was a balance to her credit of $ 600.83. On that date she had the account transferred to the credit of Ellen Olson or Olive M. Scott, or the survivor of either. Between that date and the death of Ellen Olson, October 31, 1920, $ 80 was deposited. There were also several withdrawals made both before and after Mrs. Olson's death. The last two amounts, aggregating $ 643.29, were withdrawn November 8, 1920, and the account closed.

At the time the account was transferred from Ellen Olson to herself and Olive m. Scott, Ellen Olson and Olive M. Scott and her husband came to the bank. Ellen Olson told witness she wanted to put the money in the name of Mrs. Scott, her daughter, for her use. She said she wanted to leave it for Mrs. Scott's use at her death and before. Mrs. Olson asked witness how it could be handled. He told her it could be done so that Mrs. Scott could have the use of it during her life or when Mrs. Olson died. Witness understood that was what Mrs. Olson intended to do with it, and he advised her so as to accomplish that purpose. Witness directed the transaction. On further examination the witness testified that Mrs. Olson said she wanted it fixed so that she could have the use of the money and that Mrs. Scott could have it at Mrs. Olson's death, or before.

Ernest R. Scott, the husband of defendant Olive M. Scott, testified that after Ole Olson's death Ellen Olson lived with him and his wife and sometimes went to the home of her other daughter, Mrs. Hilma Scott, for a short time. She lived just across the street from witness' home. Mrs. Olson was living at the home of witness at the time of her death. When Mrs. Olson decided to make her home with him and his wife witness heard her make the statement that she wanted the money in the bank turned over to her daughter and put in her daughter's name so she could have it. His wife objected and said if she died before Mrs. Olson did Mrs. Olson might have a hard time to get the money. It was then suggested by Mrs. Olson that the money be placed in the names of both of them, and that was agreed to. Mrs. Olson said that was the way the money was in the bank when her husband lived. She also said that then Olive would have the...