Pence v. Wessels

• Decision Date: 16 February 1948
• Docket Number: No. 40.,40.
• Citation: 320 Mich. 195,30 N.W.2d 834
• Parties: PENCE v. WESSELS.
• Court: Michigan Supreme Court

320 Mich. 195

30 N.W.2d 834

PENCE

v.WESSELS.

No. 40.

Supreme Court of Michigan.

Feb. 16, 1948.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. doty, judge.

Suit in equity by David C. Pence, as executor of the estate of Norman McPherson, deceased against J. Joe Wessels to recover the proceeds of two joint bank accounts. Decree for plaintiff, and defendant appeals.

Affirmed.

Before the Entire Bench.

David C. Pence, of Pontiac (John Anderson, of Stratford, Ontario, Canada, of counsel), for plaintiff and appellee.

Robert D. Heitsch of Pontiac and Franklin E. Morris of Ferndale, for defendant and appellant.

BOYLES, Justice.

Plaintiff, as executor of the estate of Norman McPherson, deceased, filed a bill of complaint in the circuit court for Oakland county in chancery to recover from the defendant the proceeds of two joint bank accounts standing in the name of Norman McPherson and the defendant at the time of McPherson's death. No question has been raised that the plaintiff has an adequate remedy at law. Issue was joined in the case, proofs taken, and the trial court entered a decree:

‘That the joint bank accounts * * * were so established merely for the convenience of the above deceased and that the statutory presumption relative to joint bank accounts has been overcome by testimony offered by the plaintiff, and further that the defendant herein has in no manner established any interest in, or right to said accounts, * * * that the plaintiff as executor of said deceased's estate is entitled thereto, said accounts being in the amount of $5,646, and it further appearing said defendant, J. Joe Wessels, has heretofore withdrawn the funds in said accounts. * * *

‘It is ordered, adjudged and decreed that the joint bank accounts established by the above named deceased, Norman McPherson, be and the same hereby are funds and property of the estate of the above deceased.’

The defendant, for reversal, claims that the plaintiff did not ‘overcome the presumption of the statute’; that the result reached was contrary to the law and the evidence; and that certain evidence of statements alleged to have been made by the deceased to other persons not in the presence of the defendant were inadmissible, erroneously received, and relied upon by the trial court.

That part of the joint bank account statute material to the issue is as follows:

‘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 becomethe 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.

* * *

‘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.’ 3 Comp.Laws 1929, § 12063, as amended by Act No. 286, Pub.Acts 1937, Comp.Laws Supp. 1940, § 12063, Stat.Ann. § 23.303.

The concluding paragraph of the above section was added by Act No. 286, Pub.Acts 1937. However, in a case involving the creation of a joint bank account under the statute in effect before said paragraph was added (See 3 Comp.Laws 1929, § 12063), this Court had held as follows:

‘The creation of a joint bank account does not conclusively establish title in the surviving depositor after the death of one of the depositors but merely creates a presumption of ownership in the survivor rebuttable by competent evidence to the contrary (3 Comp.Laws 1929, § 12063).’ Van't Hof v. Jemison (syllabus), 291 Mich. 385, 289 N.W. 186.

The above conclusion has been followed in subsequent decisions.

‘A rebuttable or prima facie presumption has no weight as evidence; it may establish a prima facie case, but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence, and upon introduction of supporting evidence, the actual evidence introduced is then weighed without giving any evidential force to the presumption itself.’ Hill v. Hairston (syllabus), 299 Mich. 672, 1 N.W.2d 34.

To the same effect, see Allstaedt v. Ochs, 302 Mich. 232, 4 N.W.2d 530,5 N.W.2d 433;Manufacturers National Bank v. Schirmer, 303 Mich. 598, 6 N.W.2d 908;Mitts v. Williams, 319 Mich. 417, 29 N.W.2d 841.

Appellant relies on Lau v. Lau, 304 Mich. 218, 7 N.W.2d 278. While some statements therein seemingly tend to support appellant's position, contrary to the above conclusions of law, they must be read in connection with other statements of the law of the case, and the case is distinguishable from the case at bar by the facts. The controlling question in the instant case is the same as the controlling question in Mitts v. Williams, supra [319 Mich. 417, 29 N.W.2d 843], stated therein as follows:

‘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.’

Defendant J. Joe Wessels, to support his claim at the hearing before the trial court, relied on the ‘presumption’ created by the statute above quoted, and the testimony of one Steinbaugh, a business associate of the defendant as well as a friend of the deceased, who testified (without objection as to materiality) as follows:

‘My full name is Albert Steinbaugh. I live at Fairwood avenue, Pleasant Ridge. My business is undertaking, funeral directing. I am associated with Mr. Wessels. Our business is located at 23257 Woodward avenue, Ferndale. I knew Norman McPherson in his lifetime. I presume I had known him close to 25 years. In the summer of 1945 he didn't discuss with me any of his business affairs a great deal. Norman wasn't so very much of a hand to say very much about his business. He had talked with me about making a joint bank account. That conversation took place at my office. I don't know that I can fix the time and date approximately when that took place only I would imagine it was sometime in August. * * *

‘Q. Did the question of the joint bank account come up later than that? A. Yes.

‘Q. When did he talk about a joint bank account? A. Well, it was as I recall after his brother was buried, after the funeral. I don't know how soon afterwards.

‘Q. What did he say? A. Why he said ‘I made up my mind to go to Florida this winter and I want to put some money in the bank and when I get down there if I need any I want you to send me some.’

‘Q. What did you tell him? A. I says ‘Mac, I can't help you because I am figuring on going to Florida myself this winter’ so that was all the conversation there was.

‘I later learned the had made arrangements with Mr. Wessels about a joint bank account. I was present at a conversation between Mr. Wessels and Mr. McPherson about the joint bank account.

‘Q. When was that?. A. Well, later, I would say about two weeks after he came to me and wanted to put it jointly with me-I would say it was about two weeks.

‘Q. Can you give us any idea as to how long that was before he was killed? A. I think-that's pretty hard for anyone to say.

‘Q. It was during the summer of 1945? A. Oh, yes, sure.

‘Q. Where did the conversation take place? A. In the office.

‘Q. Tell us what was said? A. Well, as I recall it, Mac told me he had put it in jointly with Joe and Joe happened to be there in the office too and these may not be the exact words but as near as I can recall Wessels asked him ‘What will I do with the balance if you should die or anything’ and he said ‘I'd just soon you would have it as anybody else.’'

Inasmuch as the above alleged statements were made by Mr. McPherson after the joint bank accounts in question were made, the testimony would have been inadmissible, under the ruling in Mitts v. Williams, supra, if objection thereto had been made.

On behalf of the plaintiff, the following facts and circumstances are undisputed:

Norman McPherson was an elderly widower, without children. His next of kin were a brother George and a sister Mary, both unmarried, residing in Ontario, Canada. In 1942 he executed a will bequeathing his property to his brother and sister, or to the survivor in the event one of them predeceased him. Plaintiff David C. Pence was named therein as executor. The deceased's brother George died in July, 1945, and decedent himself was killed in an automobile accident in Ontario on September 27, 1945, while returning from a visit to his sister. The aforesaid will was duly admitted to probate in Oakland county, and David C. Pence confirmed by the court as executor. Thereupon this bill in chancery was filed by said executor to recover the joint bank deposits which are the subject matter on this appeal.

At the hearing, the trial court admitted as evidence the testimony of a disinterested witness, as to statements made to her by the deceased both before and after the joint bank accounts were created, not in the presence of the defendant, concerning his money and his bank accounts. Appellant insists that this evidence was hearsay and...