Sautter v. Coffey

• Decision Date: 12 September 1978
• Citation: 283 Or. 303,584 P.2d 245
• Parties: Jeaneatta H. SAUTTER, Appellant-Cross-Respondent, v. Meldon R. COFFEY, Executor of the Estate of Ronald R. Sautter, Deceased, Respondent-Cross-Respondent, Luella Tuttle, Loretta Albrecht, Eileen Besse, Harry Sautter and Neil Sautter, Intervenors-Respondents-Cross-Appellants. TC 124-694; SC 25096.
• Court: Oregon Supreme Court

Page 245

584 P.2d 245

283 Or. 303

Jeaneatta H. SAUTTER, Appellant-Cross-Respondent, v. Meldon R. COFFEY, Executor of the Estate of Ronald R Sautter, Deceased, Respondent-Cross-Respondent Luella Tuttle, Loretta Albrecht, Eileen Besse, Harry Sautter and Neil Sautter, Intervenors-Respondents-Cross-Appellants.

TC 124-694; SC 25096.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 8, 1978.

Decided Sept. 12, 1978.

Tyler Marshall, of Bouneff, Muller & Marshall, Portland, argued the cause and filed briefs for appellant.

Ridgway K. Foley, Jr., of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, argued the cause for intervenors-respondents-cross-appellants. With him on the briefs were Robert G. Simpson and Robert D. Dayton, Portland.

No appearance for respondent-cross-respondent Coffey.

Before DENECKE, C. J., and HOLMAN, HOWELL, and LENT, JJ.

HOLMAN, Justice.

Plaintiff, widow of Ronald Sautter, brings this action of replevin, seeking to recover certain bank accounts, stocks, and a coin collection which are in the possession of defendant, the executor of the estate of Ronald Sautter. The residuary beneficiaries under Sautter's will have intervened and are the real parties in interest.

Plaintiff appeals from that part of the judgment which denied recovery to her of a checking account and the coin collection. Intervenors cross-appeal from the award to plaintiff of two savings accounts and some shares of corporate stock plus a dividend check therefrom. The case was tried to the court without a jury.

Plaintiff and Ronald Sautter married in 1962. They separated in 1971 but never divorced. At the time of separation they entered into a property settlement agreement. Despite the separation they remained friends, and decedent subsequently employed plaintiff part time and then full time in his business. He became terminally ill with cancer in September 1975, at which time he moved into plaintiff's apartment, alternating his stay there with hospitalization as his condition required. He left a will making plaintiff the beneficiary of a $150,000 trust fund and his brothers and sisters his residual beneficiaries.

Several years prior to his death, decedent had his attorney prepare a document entitled "Declaration and Acceptance of Gift," which listed his coin collection as of that time and declared it a gift to plaintiff. He had plaintiff sign the acceptance part of the document but he did not deliver it to her. At some unknown subsequent time he signed it and thereafter retained it in his desk. He stored the collection in a safe in his office and kept the keys to the safe in the drawer of his desk. Plaintiff had access to his desk and to the safe but only in connection with her work as an employee. According to plaintiff, at the time her husband had her sign the acceptance of the gift, he said he was giving the collection to her. She also testified, as did other witnesses, that he subsequently said he had given it to her, the last occasion being shortly before his death. Subsequent to having plaintiff sign the acceptance, decedent continued to add to the collection and treated it no differently than he had previously. He was advised by his attorney that if a gift of the coin collection were actually made, a gift tax return would be required, but none was ever filed.

This is a law case; therefore, the issue is whether there is evidence to sustain the trial court's judgment. It is our conclusion that there is sufficient evidence to sustain its conclusion that there had been no gift of the coin collection. The trial court could have disbelieved the testimony of plaintiff and her witnesses concerning decedent's oral declarations that he had given it to her and decided that because he continued his use of the collection and because he never delivered the document of gift to her or filed a gift tax return, he had no intent to make a gift. By our conclusion we do not intend to indicate that a manual delivery of a document of gift or of property which is the subject of a gift is always a necessary prerequisite to the existence of a completed gift if, in fact, it is found that there was a present donative intent. See Note, 21 Or.L.Rev. 190 (1942).

After decedent became ill and moved into plaintiff's apartment, decedent had plaintiff's name put on his checking account in the Bank of California. The provisions of the signature card had a box which had been marked for "Joint tenancy with right of survivorship." The signature card also had a box which was unmarked and which provided for "Tenants in common or joint tenants without right of survivorship." Thus, decedent was given a choice whether to give or not to give plaintiff a right of survivorship. When plaintiff was asked about the creation of the joint checking account, she testified that it was opened so she could write checks, when decedent was not up and around, to pay their living expenses, hers as well as his. All funds in the account were contributed by decedent. At the time of his death, there was approximately $6,800 in the account. The ownership of this account was denied to plaintiff.

This decision is considerably more difficult. Intervenors depend upon the following language from Greenwood v. Beeson, 253 Or. 318, 324, 454 P.2d 633, 636 (1969):

" * * * However, when all of the funds in the account are deposited by only one of the signatories the recitation in the deposit agreement that the account is 'jointly owned' should not be treated as conclusively establishing the intent of the parties. To do so would be to give to the deposit agreement an effect which is normally not intended by those who open such accounts. Where the evidence shows that all of the funds in the account were deposited by only one of the signatories, the other signatory is to be deemed a trustee of the donor's power to withdraw from the account unless the intent to create some other legal relationship is proven."

Intervenors' dependency upon this language overlooks the facts of Greenwood and other language of the opinion. In that case there was no death nor issue of the right of survivorship. A judgment against the person whose name was added when a joint account was established was attempted to be satisfied out of the account by way of garnishment. The judgment debtor had contributed nothing to the account. In affirming the trial court's decision that the judgment could not be satisfied out of the account, the Greenwood court also used the following language, which appears immediately prior to the heretofore quoted language relied upon by intervenors:

"Applied literally the language of the deposit agreement would create in the signatories in all cases a present concurrent ownership in the account. However, parties signing such an instrument ordinarily do not regard it as memorializing an agreement fixing their respective rights in the account in all of the various contingencies under which deposits are made and money is withdrawn. In signing such an agreement the parties do not freely contract as they do when they prepare their own instrument. A deposit agreement is an adhesion contract prepared by the bank primarily to protect its own interests rather than to define the rights of the co-depositors Inter se. Illustrative is the provision that withdrawals by one co-depositor will divest the other of his interest. On the other hand, the provision for a right of survivorship would, in most instances, express the intent of the parties. And where both parties make deposits into the account the provision of the deposit agreement that the account shall be 'jointly owned' probably would in most cases express their intent to create a present concurrent interest of some kind in the account. Evidence should be freely admissible to show what the parties intended with respect to the respective interests in the account. * * *." 253 Or. at 323-24, 454 P.2d at 635-36. (Emphasis added.)

If the only testimony was that the account was established so that plaintiff could pay decedent's bills while he was ill, there would be a basis for affirming the trial judge's decision. Johnson v. Johnson, 27 Or.App. 461, 556 P.2d 969 (1976). However, no such construction can be put on her testimony. Decedent was giving her a present interest so she could pay her bills as well as his, and he could have accomplished this purpose without giving her a right of survivorship since the signature card specifically allowed him to make such a choice. There is no testimony indicating that decedent was so ill at the time of signing this signature card that his judgment or choice was impaired. In view of the choice given, there is no basis for saying that the provision for the right of survivorship was an adhesion contract for the protection of the bank's interest or that the payment of the living expenses of decedent and his wife was the sole purpose sought to be accomplished by the establishment of the account. Therefore, it is our opinion that there is no basis for the decision of the trial judge awarding the account to decedent's estate, and the account should have been awarded to plaintiff. ¹ Intervenors argue that the provision made for plaintiff in decedent's will, the stormy marital history of decedent and plaintiff which resulted in their separation, and the property settlement agreement between them at the time of their separation, all furnish a basis for the trial judge's decision and that it should therefore be upheld. These matters were known to decedent at the time he was given the choice concerning ownership of the account following his death, and we believe they constitute an inadequate basis for the trial judge's decision. The...