Scriven v. Scriven

• Decision Date: 26 January 1951
• Docket Number: 32871,Nos. 32865,s. 32865
• Citation: 45 N.W.2d 760,153 Neb. 655
• Parties: SCRIVEN et al. v. SCRIVEN et al. (two cases).
• Court: Nebraska Supreme Court

Page 760

45 N.W.2d 760

153 Neb. 655

SCRIVEN et al. v. SCRIVEN et al. (two cases).

Nos. 32865, 32871.

Supreme Court of Nebraska.

Jan. 26, 1951.

Syllabus by the Court

1. By the terms of section 8-167, R.S.1943, when a deposit in any bank in this state is made in the name of two or more persons, deliverable or payable to either or to their survivor or survivors, such deposit, or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business.

2. Section 8-167, R.S.1943, relating to the payment by a bank of deposits entered as payable to any one of two or more persons named therein, not only is intended for the protection of the bank, but also to fix the property rights of the persons named, unless the contrary appears from the terms of the deposit.

3. A deposit of money in a bank by a husband and made payable to himself or wife, whether expressly as joint tenants with right of survivorship or not, is presumed to have been made by the husband with a donative intent and for the benefit of the wife with the intention of giving to her, if she survives, the complete title to the funds.

4. 'Elevator property' as used in the will in question is construed to include the physical structures, the leasehold, the merchandise on hand for use and being used in the transaction of the business, the outside equipment used in pursuit of the business, and certain cash on hand.

5. In determining the intention of a testator it is the duty of the court to examine the will and give to it the true intent of the testator as it is expressed in the will.

6. Parol evidence is inadmissible to determine the intent of a testator as expressed in his will, unless there is a latent ambiguity therein which makes his intention obscure or uncertain.

7. A legacy which is specific but alternative as distinguished from a general one remains specific and payable ahead of general legacies unless an intent that it shall abate as a specific legacy is apparent from the will.

8. An answer to a petition for probate of a will raising only the question of the statutory formality of the execution of a will which imposes no greater burden on the proponent than that imposed by statute is not in a true sense a contest of the will.

F. J. Reed, Mitchell, for Evelyn Scriven.

Mothersead, Wright & Simmons, Scottsbluff, for appellees.

F. J. Reed, Mitchell, for interveners-appellees-appellants Anita Kendall and Jane Ellis.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action in equity instituted by C. Eldridge Scriven in his own behalf and as executor of the estate of Clarence E. Scriven, deceased, plaintiff and appellee, against Evelyn Scriven, defendant and appellant, wherein the plaintiff seeks a declaratory judgment declaring him to be the sole owner of a bank account in the amount of $49,691.14 and also the sole owner of bills receivable from a business operated by Clarence E. Scriven in his lifetime but which was disposed of before his death. Other matters were presented for consideration and determination in the action but for convenience and for better understanding they will be dealt with separately and later herein. Anita Kendall and Jane Ellis, legatees under the will of Clarence E. Scriven, were interveners in the action. They are appellants here.

The trial court found and decreed $15, 262.18 of the bank account belonged to the plaintiff and that the balance belonged to the estate. From the decree in this respect the defendant and the interveners have separately appealed, and the appeals have been consolidated by stipulation in this court.

The plaintiff is the son of the deceased, Clarence E. Scriven, and the executor of his will. The defendant is the widow. She is not the mother of the plaintiff. Plaintiff is a son of a former marriage. The interveners are not related to any of the parties but from early childhood they were brought up in the home of Clarence E. Scriven and the defendant.

Clarence E. Scriven died on November 10, 1947. On October 13, 1945, he opened a bank account in the First National Bank of Mitchell in the name of 'Mr. or Mrs. C. E. Scriven.' This was a checking account. The account was opened by the use of a regular deposit slip on the heading of which he wrote 'Mr. or Mrs. C. E. Scriven.' The amount of the deposit was entered on the slip. This slip with the deposit was delivered to an employee of the bank and the transaction duly entered on the records of the bank.

At this time the deceased was and for many years theretofore had been the owner of a business known as the Mitchell Elevator. Prior to the opening of the 'Mr. or Mrs. C. E. Scriven' account the deceased had an account in the First National Bank of Mitchell under the name of 'Mitchell Elevator.' All of his banking business of every kind was handled through this account. He and his wife drew at will against the account. After the opening of the 'Mr. or Mrs. C. E. Scriven' account each drew at will against it also.

On June 16, 1947, the deceased sold the elevator business. On June 30, 1947, the 'Mitchell Elevator' account, then containing $46,138.79, was by direction of the deceased closed by the bank and this amount credited to the 'Mr. or Mrs. C. E. Scriven' account. Thereafter the deceased had no other account in any bank.

The sale of the buildings, the lease, the machinery, and equipment, except motor vehicles of the Mitchell Elevator was evidenced by a written contract of sale. The consideration for the sale was $30,000, payable $6,000 cash and four promissory notes for $6,000 payable one, two, three, and four years after date respectively.

At the same time that the elevator property was sold deceased sold to the same purchaser the stock of merchandise on the property, the cash on hand, and one truck for a total purchase price of $9,321.93. This transaction except for the amount of $59.85 is evidenced by an inventory which appears in the record.

The basis of the determination of the trial court was the interpretation placed upon the will of the deceased which had been duly admitted to probate, the interpretation placed upon the 'Mr. or Mrs. C. E. Scriven' bank account, and the application of the terms of the will to the sale of the Mitchell Elevator.

The will contains the following provision:

'Third: To my son, Clarence Eldridge Scriven, I give, devise and bequeath my Grain Elevator property in Mitchell, Nebraska, and the farm that I now own, situated in the State of Iowa, to be held by him and his heirs forever, absolutely, in fee simple, provided, however that in the event that during my lifetime I have sold or disposed of either one or both of these properties, then, and in that event, I hereby give and bequeath to my said son the proceeds from said sale in whatever form they may appear, if distinguishable, and if not, then a sum equal to the proceeds of said sales to the use of him and his heirs absolutely.'

Under this provision of the will plaintiff contends that, among other things to be discussed later, he became entitled on account of the sale of the Mitchell Elevator to the four promissory notes of $6,000 each, $6,000 representing the payment to the deceased in cash, and $9,321.93, representing the amount received for the property and money described in the inventory, the last two amounts amounting to $15,321.93. The decree gave him $15,262.18. There is obviously an error in the computation and an inadvertent failure to include the item of $59.85. On the theory adopted by the trial court the amount should have been $15,321.93.

The parties do not contend that plaintiff is not entitled to the four notes. The reason for the allowance of the $15,262.18 out of this bank account rather than out of the estate generally does not appear. We assume however that it was on the theory that the proceeds of the sale went into the account therefore this amount must come out of it.

The defendant contends that nothing could come either to plaintiff or to the estate from the bank account for the reason that it was a joint account within the meaning of law and therefore upon the death of Clarence E. Scriven it became her sole and absolute property. By the decree the court found otherwise. It found that the account belonged to Clarence E. Scriven and that on his death it became a part of his estate, hence the judgment that all of the account except $15,262.18 belonged to the estate.

The propriety of the disposition made of the bank account therefore depends upon whether or not within the meaning of law it was joint. If it was joint then under our statutes and the interpretations and applications of them by this court the account after the death of Clarence E. Scriven became the property of the defendant.

Section 8-167, R.S.1943, provides: 'When a deposit in any bank in this state is made in the name of two or more persons, deliverable or payable to either or to their survivor or survivors, such deposit, or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business.'

In the case of In re Estate of Johnson, 116 Neb. 686, 218 N.W. 739, this court said: 'Section 8046, Comp.St.1922 (Section 8-167, R.S.1943), relating to the payment by a bank of deposits entered as payable to any one of two or more persons named therein, not only is intended for the protection of the bank, but also fixed the property right of the persons named, unless the contrary appears from the terms of the deposit.'

It was also said: 'A deposit of money in a bank by a husband and made payable to himself or wife, whether expressly as joint tenants with survivorship or not, is presumed to have been made by the husband with a donative intent and for the benefit of the wife with the intention of giving to her, if she survives, the complete title to the...