Paterson v. Comastri

• Decision Date: 27 May 1952
• Citation: 39 Cal.2d 66,244 P.2d 902
• Court: California Supreme Court
• Parties: PATERSON v. COMASTRI et al. (three cases). S. F. 18092.

Page 902

244 P.2d 902

39 Cal.2d 66

PATERSON v. COMASTRI et al. (three cases).

S. F. 18092.

Supreme Court of California, in Bank.

May 27, 1952.

Rehearing Denied June 19, 1952.

Stanley Burke, San Francisco, for appellant.

Alcide Comastri, in pro. per.

Thomas P. Kelleher, Frank J. Fontes, Davis & Barber and Robert K. Barber, all of San Francisco, for respondent.

James B. Abbey and James S. Lowrie, San Diego, amici curiae on behalf of respondent.

SPENCE, Justice.

Plaintiff brought three separate actions, which were consolidated for trial, to determine the conflicting claims of plaintiff and defendant Comastri to three joint bank accounts. One account is in each of the defendant banks, and it was stipulated that the banks are mere stakeholders. From findings and judgments adverse to her, plaintiff appeals.

Plaintiff and Mary Blair Gilmour were sisters. Following the death of Mary's husband in 1934, Mary opened a savings account in the names of herself and plaintiff with each of the defendant banks. In July, 1945, Mary married defendant Comastri, and in August of that year she caused the three accounts to be transferred from the names of plaintiff and herself to the names of herself and her husband in joint tenancy. Plaintiff did not learn of these transfers until after Mary's death in 1947.

It is plaintiff's claim that she is entitled to one-half of the monies transferred from each of the original joint accounts to the new accounts. She argues that Mary was entitled to withdraw only one-half of these monies, and that by her appropriation of the entire balances to open the new accounts, she effected a severance of the unity of titile. As a result thereof, plaintiff maintains that she become entitled as a tenant in common to one-half of the whole of each deposit existing at the time.

Defendant Comastri, on the other hand, takes the position that his wife had the right to withdraw the funds from the original accounts without liability to plaintiff because she was in fact and in law the real owner of the money. He therefore, as the survivor of the joint tenancies established by his wife through the transfers in August, 1945, claims to be entitled to the entire balances in all three accounts.

It is undisputed that all three original accounts were opened with Mary's money; that the withdrawals from time to time were all made by her; that the passbooks were held by her throughout, and that the transfers to the new accounts were negotiated by her without the plaintiff's knowledge or consent. Nor does plaintiff dispute that all subsequent deposits were made by Mary except one for $2,000, which plaintiff claims to have made. The trial court, however, found otherwise as a reasonable inference from the evidence. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183; Raggio v. Mallory, 10 Cal.2d 723, 725, 76 P.2d 660.

When the account with the Hibernia Bank was opened in December, 1934, plaintiff and Mary signed a printed form provid-that the funds therein would be 'payable to either or to the survivor of them.' A more extended writing was signed by them when the account with the Bank of America was opened in the same month. It provided in part that: 'The undersigned depositors agree as follows with Bank of America * * * (2) that all funds now to the credit of or which may hereafter be placed to the credit of this account are and shall be the property of the undersign as joint tenants to the withdrawn as follows: Upon the signature of either of us or the survivor * * *.' They signed a substantially similar writing when the account with the American Trust Company was opened in January, 1939, and again in 1943, when, after loss of the passbook for the Bank of America account, a new book was issued to them.

Plaintiff testified at length in reference to the circumstances surrounding the opening of the accounts, the related conversations between her sister and herself during the ensuing years, and the exercise of control by her sister over the funds by keeping sole possession of the passbooks and making the deposits and withdrawals. She stated that in two of the three instances Mary had asked her to accompany her to the bank for the purpose of opening a 'joing account'; that she had done so and had signed whatever was presented to her by the bank teller. On the other occasion the bank's printed card was mailed to her for her signature. She testified that her 'sister would occasionally tell me this account has earned so much interest or I have added to this,' and that when the Bank of America and American Trust accounts were opened, her sister in each instance had said 'it was a joint account, and it was to come to me automatically at her death.'

Plaintiff further testified that while she had never made any withdrawals from any of the three joint accounts, she knew that if she 'needed money or help in any way my sister would certainly have allowed me to have a certain sum from her bank as I would from my own if she needed money.' With respect to the single deposit of $2,000 which she claimed to have made in one of the accounts, plaintiff appeared to be very uncertain about the exact nature of the transaction. While identifying such sum to have been realized as her share in the sale of some family property, plaintiff admitted that she had 'no definite recollection' of what was done with the money.

The court made findings favorable to defendant Comastri in every respect. It found that Mary 'never intended' and plaintiff 'never understood or believed that the addition of plaintiff's name in the statutory pattern endowed plaintiff with a vested property interest' in the three accounts opened in their names; that they were not joint tenancy accounts, and that Mary and plaintiff agreed that they 'would have a different character,' namely, 'that of sole and absolute ownership' in Mary with plaintiff 'succeeding upon the death of Mary * * * to whatever, if anything, was left.' The court further found that plaintiff at no time made any deposits in, contributions to, or withdrawals from these accounts, and that Mary 'at all times withheld from plaintiff all dominion over the account(s) and exercised full control and power of disposition as sole owner thereof, retaining the passbook(s) in her possession.' The court determined therefrom that the 'presumption arising from the form of the account(s)' in the names of Mary and plaintiff had been 'overcome by evidence.' With respect to the accounts established in the names of Mary and defendant Comastri, the court concluded that the joint tenancies 'in the statutory pattern' were 'conclusive evidence of the intention of the depositor to vest title to the deposit(s) and all additions thereto in the survivor, Alcide Comastri.'

The position of plaintiff on this appeal is twofold. She argues (1) that although in the usual case of withdrawals by one depositor from a joint account during the lives of the depositors that presumption of joint tenancy is rebuttable, Section 15a of the California Bank Act, it may not be rebutted by parol evidence in the case where the joint tneancy account was created by an unequivocal writing; but (2) if parol evidence is admissible, there has been an insufficient showing in this case to overcome the rebuttable presumption.

Section 15a of the California Bank Act, Deering's Gen.Laws 1937,Act 652, pp. 221-222, provides that a deposit made by any person in the names of such depositor and others 'in form to be paid to any of them or the survivor or survivors of them' shall become the 'property of such persons as joint tenants,' and that '(t)he making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action or proceeding to which * * * the surviving depositor or depositors may be a party, of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors.'

This section, which was copied from the New York Bank Act, has been construed by the courts of this state and of New York to set up two presumptions: First, that a deposit in the names of the depositor and another person 'in form to be paid to' either or the survivor of them, becomes the property of such persons as joint tenants. This first presumption is not conclusive, and may be overcome by proof that the owner-depositor, when making the deposit, had no intention to create a true joint tenancy. The second presumption, that in the absence of fraud of undue influence, it was the intention of the depositors to vest title in the survivor, is conclusive. In order that the conclusive presumption may be applicable, however, there must be survivorship, and even then it applies only in favor of the survivor to monies still remaining in the account at the time of death. It does not apply in respect to monies withdrawn by either of the depositors during life, even if one of the depositors has subsequently died. Wallace v. Riley, 23 Cal.App.2d 654, 661, 74 P.2d 807; Moskowitz v. Marrow, 251 N.Y. 380, 396, 167 N.E. 506, 512, 66 A.L.R. 870; Matter of Porianda's Estate, 256 N.Y. 423, 425-426, 176 N.E. 826; Matter of Juedel's Will, 280 N.Y. 37, 40, 19 N.E.2d 671; Walsh v. Keenan, 293 N.Y. 573, 578, 59 N.E.2d 409.

The question presented by plaintiff's claim is that of the right of one of the codepositors to withdraw funds from the account during the lives of the codepositors. Under these circumstances the statutory presumption of equality of interest arising from the form of the joint account is rebuttable by competent evidence showing the true character and ownership of the monies deposited. Wallace v. Riley, supra, 23 Cal.App.2d 654, 664, 74 P.2d 807; In re Kellogg, 41 Cal.App.2d 833, 841-845, 107 P.2d 964; Spear v. Farwell, 5 Cal.App.2d 111, 113, 42 P.2d 391; Moskowitz v. Marrow, supra, 251 N.Y. 380, 396, 167 N.E. 506. This is conceded by plaintiff, but she argues that parol evidence...