Simonich v. Wilt, 44535

• Decision Date: 22 July 1966
• Docket Number: No. 44535,44535
• Citation: 417 P.2d 139,197 Kan. 417
• Parties: Frances SIMONICH, Executrix of the Estate of John J. Heath, Deceased, Appellee, and Woodrow K. Gingery, Elizabeth Gingery and Dorothy DePauli, Interveners-Appellees, v. Madena WILT, Appellant.
• Court: Kansas Supreme Court

Page 139

417 P.2d 139

197 Kan. 417

Frances SIMONICH, Executrix of the Estate of John J. Heath Deceased, Appellee and Woodrow K. Gingery, Elizabeth Gingery and Dorothy DePauli Interveners-Appellees, v. Madena WILT, Appellant.

No. 44535.

Supreme Court of Kansas.

July 22, 1966.

Syllabus by the Court

Where a decedent in his lifetime deposited money owned by him in a joint tenancy bank savings account with his daughter, both of whom were present at the bank and signed a joint survivorship account signature card at the time the deposit was made, after consultation with the executive vice president of the bank on the matter, it is held: Under the parol evidence rule parol or extrinsic evidence is inadmissible to vary the plain and unambiguous terms of the written deposit agreement, and the surviving daughter is entitled to the account.

James P. Cashin, Prairie Village, argued the cause, and John J. Lyons, Jr., and James A. Pusateri, Prairie Village, and Fred J. Freel, Kansas City, Mo., were with him on the brief, for appellant.

Walter G. Klamm, Kansas City, argued the cause, and Chas. F. Burkin, Jr., Kansas City, was with him on the brief, for appellee, Frances Simonich, Ex'x.

John J. Ziegelmeyer, Kansas City, was on the brief for the interveners-appellees.

SCHROEDER, Justice.

This is an action at law instituted by the executrix of an estate claiming as an asset of the decedent's estate moneys in a joint tenancy bank savings account standing in the names of the decedent and Madena Wilt (defendant- appellant). The case was tried to the court and appeal has been perfected by the defendant from an adverse judgment, holding the joint tenancy bank account was impressed with an oral trust on behalf of the devisees and legatees under the will of the decedent.

The primary question in this case is whether the competent evidence presented in the record establishes the creation of a valid joint tenancy bank savings account with right of survivorship.

John Heath, a widower, returned to Kansas City, Kansas, from California following the death of his second wife during the latter part of 1961. He established his residence in Kansas City with Madena Wilt, a daughter by his first marriage, and her husband, George Wilt, under an arrangement whereby Madena was to care for him in his old age.

Health had previously been in the real estate business and although advanced in years and in questionable physical health, all witnesses considered him to be competent and able to conduct his business up until his death.

The joint tenancy account in controversy was created during the latter part of July, 1962, when Heath and his daughter, Madena, went to the Twin City State Bank in Kansas City, Kansas, for that purpose, after Heath had sold part of his real estate holdings in California, from which he realized cash sums approximating $28,200.

Health and his daughter, Madena, conferred with Charles Dodsworth, executive vice president at the bank, with whom they were acquainted, and Heath requested Dodsworth to set up a joint savings account with right of survivorship between himself and his daughter, Madena Wilt. Dodsworth and Heath discussed the right of survivorship with respect to the account in question, the fact that either party could draw on the account, and that in the event of the death of either of them, the survivor would take the balance then remaining. Thereupon, at Heath's request, Dodsworth had both Heath and his daughter, Madena, sign a signature card establishing a joint tenancy account between them with right of survivorship. Deposit was concurrently made in the approximate amount of $27,000, and the passbook was given by Heath to Madena Wilt who retained the same in her possession.

(The petition alleged the account in question, a sum of money in excess of $26,000, stood in the name of John J. Heath and Madena Wilt as joint tenants. This allegation of the petition was admitted in the answer.)

Subsequent deposits and withdrawals were made to and from the account by Madena Wilt. The funds deposited were provided by the decedent Health, and the funds withdrawn were for his use and benefit during his lifetime. Prior to his death, Heath told Madena and her husband that upon his death the money remaining in the joint account was to be hers. The decedent also told his son, Wilbur Heath, that he had the joint account all fixed up the way he wanted.

Heath died testate on the 26th day of December, 1962, a resident of Kansas City, Kansas. Frances Simonich (plaintiff-appellee), also a daughter by Heath's first marriage, was duly appointed executrix of his estate on the 4th day of February, 1963. The decedent had not told Frances Simonich about the joint tenancy bank account in controversy during his lifetime, and she did not learn of its existence until sometime after his death.

On the 1st day of November, 1963, the executrix filed her petition in the curt below claiming moneys on deposit in the above described bank account on the date of the decedent's death as an asset of the decedent's estate, alleging that the decedent created the account as a matter of convenience and did not intend that it go to Madena upon his death, but that the funds should be distributed in accordance with the terms of his will.

The other heirs, interveners, appear in this action in support of the executrix' position, likewise claiming an interest in the decedent's estate.

Issue was raised by the defendant's answer, which admitted the creation of the joint tenancy bank account, but denied that the decedent did not intend that it go to the defendant upon his death.

The executrix' evidence in support of her theory of recovery was that on various occasions after the creation of the joint tenancy account, the decedent had mentioned to the executrix and other relatives that he desired his children and stepchildren to share equally in the proceeds of his estate, and that in his opinion each would receive approximately $10,000.

Other testimony was admitted by the trial court concerning an effort made by the decedent to establish residence with a daughter in California to no avail prior to the establishment of the joint bank account here in question.

The trial court, among other things, found:

'3. That an account was established in the Twin City State Bank of Kansas City, Kansas, during the lifetime of John J. Health, deceased, in the names of John J. Heath and the defendant, Madena Wilt, as a survivorship account and that the contributions for the deposits made to said account were made solely by the decedent, John J. Heath, with no contributions whatever made by the defendant, Madena Wilt; that disbursements and expenditures were made from said joint account by the decedent John J. Heath, during his lifetime and by the defendant, Madena Wilt, during the lifetime of the decedent for his use, welfare, benefit and maintenance with no disbursements whatsoever made from said joint account during the lifetime of the said John J. Heath for the use and benefit of Madena Wilt.

* * * * * *

'5. The Court further finds that the said account at Twin City State Bank of Kansas City, Kansas, was, in truth and in fact, the account of and monies belonging to the said John J. Heath and that at his death the amounts on deposit with said bank were impressed with an oral trust in behalf of the devisees and legatees under the will of John J. Heath, deceased, as admitted to probate in cause No. 35736 in the Probate Court of Wyandotte County, Kansas, and that judgment be and it now is entered in favor of the plaintiff and interveners for the amount of money and sums that were on deposit in the Twin City State Bank of Kansas City, Kansas, at the date of death of John J. Health, to-wit: December 26, 1962, together with all interest and increments thereto, as allowed and paid by said bank as accretions and additions to said account and to be made and included as an asset of the estate of John J. Heath, deceased.'

Judgment was entered accordingly and costs were taxed to the defendant.

The defendant's motion to set aside the judgment was overruled on the 9th day of July, 1965, and appeal has been duly perfected to this court.

It must be conceded under K.S.A. 58-501, that a grant of personal property to two or more persons creates in them a tenancy in common with respect to such property, unless the language used in such grant makes it clear that a joint tenancy was intended to be created.

Here the trial court found (finding No. 3) that a joint tenancy savings account was established in the Twin City State Bank of Kansas City, Kansas, by the decedent during his lifetime in the names of the decedent and Madena Wilt, his daughter, as a survivorship account. This fact was admitted in the pleadings and established by the testimony of Madena Wilt and later corroborated by Charles Dodsworthy, the executive vice president of the Twin City State Bank. There is no evidence in the record contrary to their testimony that the decedent and Madena Wilt signed a joint survivor account signature card at the bank intending to create and, in fact, did create by contract a valid joint tenancy bank savings account with right of survivorship.

The facts in the instant case are readily distinguishable from those in Miller v. Higgins, 188 Kan. 736, 366 P.2d 257, where this court affirmed the trial court's finding that the evidence was insufficient to show a joint tenancy bank account with the right of survivorship had been created. There Fern Henery, a part-time employee in the Havensville State Bank, had the name of her brother, J. C. Higgins, inserted upon the ledger sheet of her account in place of her deceased husband's name. The account then read: "Fern Henery or J. C. Higgins and to the survivor of them upon the death of either." (p. 737, 366 P.2d p. 258.) As a matter of practice, the bank at that time did not require signature cards and issued passbooks only on request. They...