Schollmier v. Schoendelen

• Decision Date: 11 October 1889
• Citation: Schollmier v. Schoendelen, 78 Iowa 426, 43 N.W. 282 (Iowa 1889)
• Parties: SCHOLLMIER v. SCHOENDELEN ET AL.
• Court: Iowa Supreme Court

78 Iowa 426

43 N.W. 282

SCHOLLMIER

v.SCHOENDELEN ET AL.

Supreme Court of Iowa.

Oct. 11, 1889.

Appeal from district court, Scott county; C. M. WATERMAN, Judge.

Action to recover an amount of money deposited in the German Savings Bank of Davenport by plaintiff's intestate, and withdrawn after her death by defendants, and alleged to have been by them wrongfully converted to their own use. A verdict was returned for plaintiff by direction of the court, and judgment rendered thereon for $2,006.58 and costs. Defendants appeal.Heinz & Hirschl, for appellants.

Cook & Dodge, for appellee.

ROBINSON, J.

Katharine Schollmier died intestate on the 25th day of December, 1886. For about 15 years before her death she had made her home with the defendants, her daughters, living a part of that time with one of them, and the remainder with the other. In her life-time she kept an account with the German Savings Bank, and on the 28th day of May, 1886, it had to her credit a balance of $1,730.18. On that day decedent visited the bank with her bank-book, which contained a statement of her account with it, and had the assistant cashier write on the page next after the end of the account the following: “May 28, '86. Pay to order of Elizabeth Schoendelen and Dorothea Hasenmiller all of the within deposit after my decease.” This was signed by decedent. Two days after her death defendants drew from the bank the balance aforesaid, together with $65.40 accrued interest, making a total so drawn of $1,795.58. Plaintiff seeks to recover that amount, with interest, as belonging to the estate of decedent. Defendants claim that decedent made her home with them, as aforesaid, under a verbal agreement, by virtue of which they were to furnish her with the necessaries of life so long as she should live, in consideration of which they were to have all the property which she should own at the time of her death, and that the amount received by them was so received pursuant to said agreement. They further claim that for many years prior to decedent's death they supported her, and in so doing expended large sums of money at her instance and request, and that the money in question was assigned to them on the 28th day of May, 1886, in consideration of said support and expenditures. They also claim that decedent, on the date last named, assigned said money to them in apprehension of her death.

1. The defendants, to maintain their defense, rely chiefly upon the assignment written in the bank-book. They contend that it created and transferred to them an interest when it was executed, and that the postponing of the right to the full enjoyment of such interest until the death of the assignor did not have the effect to defeat it. Plaintiff insists that the assignment was of a testamentary character, and that, not having been executed in the manner provided by law for such instruments, is invalid, and that view seems to have been held by the court below. In our opinion, the proper effect to be given the assignment must depend upon the intent of the decedent with respect to it. In terms it is a full assignment of the amount shown by the book to be due at the time it was made, not of the amount which should be due at the death of the assignor. No right to revoke or rescind it is shown to be reserved, and, if it was treated by the assignor as a completed transaction, we think it passed a present interest in the bank-account, and is not vulnerable to the objection made by plaintiff. The power to create such an interest was recognized in University v. Barrett, 22 Iowa, 72. See, also, Craven v. Winter, 38 Iowa, 472. In Leaver v. Gauss, 62 Iowa, 314, 17 N. W. Rep. 522, it was held that an instrument somewhat in the form of a deed was of a testamentary character, for the reason that it expressly provided that the grantees should have no interest under it so long as the grantors, or either of them, should live; but there is no such provision in this case. The bank-book in which the assignment was written contains the following rule: “No money deposited in this bank can be drawn out in whole or in part unless the depositor produces his book, or his certificate, if there was one. In case a book or certificate is lost or stolen, the owner should at once give the bank written notice. If notice is not given, and the bank pays the deposit in whole or in part on the presentation of the book or certificate, then the bank is not responsible, and cannot be compelled to pay the second time, though it be ascertained that the party to whom payment was made was not entitled thereto.” It is not claimed that a certificate had been issued to decedent. No money was deposited or drawn out by her after the making of the assignment. The bank-book was in the possession of one of the defendants after that date, and before the death of decedent. These circumstances tend to show that the book was delivered to defendants to perfect the assignment, and to enable them to obtain the money in controversy, and, if that was done by the assignor, ...