Tobas v. Mutual Bldg. & Loan Ass'n of North Platte

• Decision Date: 12 November 1946
• Docket Number: 32106.
• Citation: 24 N.W.2d 870,147 Neb. 676
• Court: Nebraska Supreme Court
• Parties: TOBAS et al. v. MUTUAL BUILDING & LOAN ASS'N OF NORTH PLATTE et al.

24 N.W.2d 870

147 Neb. 676

TOBAS et al. v. MUTUAL BUILDING & LOAN ASS'N OF NORTH PLATTE et al.

No. 32106.

Supreme Court of Nebraska

November 12, 1946

Syllabus by the Court.

1. The words, 'Whenever any such certificates are made to the joint account of two or more persons, the account represented thereby shall be payable to the survivor,' contained in section 8-317, R.S.1943, is intended for the protection of the building and loan association and, in addition thereto, fixes the property rights of the persons named, unless a contrary intent affirmatively appears from the terms used in the stock certificate.

2. This provision of the statute is in derogation of the common law and eliminates all legal refinements and technicalities growing out of judicial precedents determining the nature of the transactions therein described since the adoption of the act.

3. The Legislature has full power within constitutional limits to provide the manner of distribution of the estates of deceased persons and to define the method of creating the various types of estates in real and personal property. When such action is taken by clear and unambiguous language, this court is required to give effect thereto.

V H. Halligan, of North Platte, for appellants.

Beatty Clarke & Murphy and E. H. Evans, all of North Platte, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, CHAPPELL, and WENKE, JJ., and POLLOCK, District Judge.

CARTER Justice.

The only question involved in this case is whether certificates of paid-up stock in a building and loan association made payable to 'Fred Tobas or Gertrude Hamilton or either or survivor' and 'Fred Tobas or Reid Bush or either or survivor,' are payable to the survivor of such two persons upon the death of the other where the deceased purchased, caused their issuance, accepted and retained the possession of such stock certificates until his death. From a finding in favor of the survivors, the administrator of the estate of Fred Tobas and the administrator of the estate of Susie Tobas appeal.

The record shows that on August 24, 1933, Fred Tobas was the sole owner of paid-up stock in The Mutual Building and Loan Association of the value of $4,000. On that date he sold the stock certificates to the association for cash and repurchased four $1,000 certificates. Two of the certificates were made payable to 'Fred Tobas or Gertrude Hamilton or either or survivor' and the other two were made payable to 'Fred Tobas or Reid Bush or either or survivor.' It is not disputed that Tobas retained possession of three of the certificates until his death, he having cashed one of the certificates in which Reid Bush appeared as a joint payee in his lifetime.

The record discloses that Gertrude Hamilton was a stepdaughter of Tobas and that Reid Bush was her son. There is conflicting evidence in the record as to the relationship of these parties to Tobas during his lifetime. Without reviewing the evidence in detail we think it shows that Bush was always on very friendly terms with Tobas and that Gertrude Hamilton was at times in disfavor with him. At the time of the death of Tobas he left surviving him his fourth wife, Susie Tobas, who was the sole beneficiary in his will.

The evidence shows that Tobas collected the dividends on the stock and applied them to his own use. The dividend checks were made payable to Fred Tobas and were cashed by him on his own signature. In 1942 Tobas cashed one of the certificates on which Reid Bush appeared as a joint payee. It was cashed on the signature of Tobas only and the money obtained was used by Tobas as his own, although the record shows that he gave it to Reid Bush to be used in the purchase of a home. It is the contention of the appellants that the evidence shows Tobas always considered the stock certificates as his own during his lifetime and that he never intended and did not transfer a present interest in them to Gertrude Hamilton or Reid Bush when he caused their names to be included as joint payees in the manner hereinbefore shown. It is contended by appellants that the evidence shows Tobas intended that Gertrude Hamilton and Reid Bush were to have an interest only at the time of his death and not before, and that the joint payee provisions were therefore testamentary in character and void as being contrary to the statute of wills.

We think the decision of the case rests upon the interpretation to be given to that part of section 8-317 R.S.1943, providing: 'Whenever any such certificates are made to the joint account of two or more persons, the account represented thereby shall be payable to the survivor.' This provision was first enacted in 1919 and does not appear to have been previously before ...