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upholding the circuit court’s finding that the husband "never intended to make a gift of his earnings to his wife" and concluding that, under the circumstances, the court erred when it determined that there was a right of survivorship in the account that had been opened in both of their names
Summary of this case from Henke v. KlawitterOpinion
October 27, 1964 —
November 24, 1964.
APPEAL from a judgment of the county court of Milwaukee county: RUDOLPH J. MUDROCH, Judge. Reversed.
For the appellant there was a brief by Harwood H. Staats of Cudahy, attorney, and Suel O. Arnold and Arnold, Murray O'Neill of counsel, all of Milwaukee, and oral argument by Suel O. Arnold.
For the respondent there was a brief by Kurt Schnellbaecher and Bernard F. Mathiowetz, both of Milwaukee, and oral argument by Mr. Mathiowetz.
This matter originates upon a petition for adjudication and determination of inheritance tax.
One subject of dispute is the rights of the parties in a bank account in the names of petitioner-respondent, his deceased wife, and her son born fourteen years prior to her marriage, objector-appellant. The other is the rights of the parties in cash found in a safe-deposit box.
Anna Roth, the wife of petitioner Adolph Roth for thirty-two years, died on December 14, 1961. A day or two after her death petitioner searched the flat which he and his wife occupied and found, among other things, two savings account passbooks. One of these passbooks, covering the period from February 25, 1957, to March 27, 1961, carried the names "Adolph or Anna Roth." This account was transferred to a new account, evidenced by the other passbook, on March 27, 1961. The second passbook carried the names "Anna Roth or Adolph Roth or George Filipek." The amount of this account as of March 21, 1962, was $11,998.30.
A safe-deposit box in the name of Adolph and Anna Roth yielded decedent's birth certificate and naturalization certificate; a Metropolitan life insurance policy on the life of the decedent with Adolph Roth and George Filipek named as beneficiaries; $1,480 in cash; United States savings bonds in the amount of $1,350 in the names of Adolph and Anna Roth; and the decedent's will dated May 5, 1939, which names George Filipek as sole beneficiary.
Decedent gave her son a power of attorney dated March 24, 1961, covering this safe-deposit box.
On March 21, 1962, Adolph Roth filed a petition for adjudication and determination of inheritance tax. The savings account and the cash from the safe-deposit box were among the items listed on the petition. The petition alleged that Adolph Roth was the owner of these assets. George Filipek objected to the petition. The issues were flamed by supplementary pleadings and the case was tried to the court.
Adolph Roth testified that he turned his wages over to his wife, who took care of the family finances and gave him an allowance of one dollar per week. He did not recall the existence of a bank account until the ninth ward office of the First Wisconsin National Bank was closed and the account transferred to another office. He had never seen the second passbook until he found it under the dining room rug after the death of his wife. He knew of the existence of the safe-deposit box.
Mrs. Roth had been partially paralyzed for twenty-nine years prior to her death. Mr. Roth testified that she had never been employed other than as a housewife since their marriage. Mr. Filipek testified that his mother told him she worked as a restaurant cook for sixteen years before her marriage to Mr. Roth and two years afterward. He became reacquainted with her in 1936, seven years after she married Mr. Roth. According to Mr. Roth, his wife sold some real estate in 1950 or 1951 for $1,200. He did not know what she did with the proceeds.
On March 22, 1961, Mr. Roth entered a hospital to have two discs in his spine removed. The operation was performed on March 27, 1961. Because of suspected exposure to polio Mr. Roth was in isolation at the hospital. On either March 24 or March 26, 1961, Mr. Roth signed a signature card for the new savings account in the names of Anna Roth or Adolph Roth or George Filipek. According to Mr. Roth, he did not read the card because he was in pain. He testified it was his recollection that there were no other signatures on the card when he signed it.
According to Mr. Filipek, Mrs. Roth gave the card to her husband to sign, saying that it was something which husband and wife had discussed before and that Mr. Filipek "should share in something if anything happens to us." Mr. Roth allegedly replied that was the way it ought to be. This conversation was denied by Mr. Roth.
The trial court found that all assets were saved from the earnings of Adolph Roth; that when he gave his earnings to his wife he did not intend a gift of the money to his wife; that he never intended to create a joint tenancy with himself, his wife, and George Filipek; and that he was the owner of the bank account and cash in the safe-deposit box by right of survivorship of the joint tenancy between Adolph and Anna Roth. From a judgment accordingly, objector George Filipek appeals.
On this appeal we have concluded that the proceeds of the bank account are the property of Mr. Roth, and that the cash found in the safe-deposit box is an asset of Mrs. Roth's estate.
The Bank Account.
The contract theory of joint bank accounts, adopted by this court in Estate of Staver (1935), 218 Wis. 114, 260 N.W. 655, relies on the contract of deposit rather than delivery of evidence of the chose in action for the perfection of the joint interests of donee and donor depositors. "The instrument in legal contemplation vests ownership in a chose in action according to its terms. The joint interest is perfected by the initial delivery, and no further transfer is required by the depositor." Estate of Staver, supra, page 120.
In the Staver Case doubt was expressed whether the circumstances surrounding the creation of a joint bank account could be used to prove lack of donative intent, and thereby rebut the presumption that a joint interest was created in the promisees. In Estate of Hounsell (1948), 252 Wis. 138, 31 N.W.2d 203, it was pointed out that a donor-depositor claiming that no joint interest was created was in effect seeking to reform evidences of title.
Later cases have departed from Staver and Hounsell to the extent that the intention of the donor-depositor to create a joint tenancy in the chose in action controls a joint bank account case. The form of the bank account is not determinative, but must be considered with the surrounding facts and circumstances in order to ascertain the intent of the donor-depositor. The contract raises a rebuttable presumption that the usual rights incident to jointly owned property were intended to vest in the donee-depositor. This presumption can be overcome by clear and convincing evidence. Estate of Kemmerer (1962), 16 Wis.2d 480, 114 N.W.2d 803; Estate of Pfeifer (1957), 1 Wis.2d 609, 85 N.W.2d 370; Zander v. Holly (1957), 1 Wis.2d 300, 84 N.W.2d 87; Estate of Schley (1955), 271 Wis. 74, 72 N.W.2d 767; Kelberger v. First Federal Savings Loan Asso. (1955), 270 Wis. 434, 71 N.W.2d 257; Plainse v. Engle (1952, 1953), 262 Wis. 506, 56 N.W.2d 89, 57 N.W.2d 586.
The contract-signature card which presumptively created the joint account between Mr. and Mrs. Roth provided: "The money now and hereafter deposited is owned as joint tenants by the persons named, . . ." Mr. Roth testified he signed this card without knowing what it was. The trial court found that Mr. Roth never intended to make a gift of his earnings to his wife. From our review of the record, although a close question, we cannot say this finding is against the great weight and clear preponderance of the evidence. The finding must stand. We consider erroneous the trial court's conclusion that Mr. Roth was the owner of the bank account by right of survivorship of the joint tenancy between himself and his wife.
See Estate of Budney (1957), 2 Wis.2d 389, 86 N.W.2d 416.
As to the three-named account, the same rule must apply. The trial court found that Mr. Roth did not intend to make a gift to his wife and that he did not intend to create a joint interest in Mr. Filipek. Even under the testimony most favorable to Mr. Filipek — the statement attributed to Mrs. Roth that Filipek "should share in something if anything happens to us" would not create a present interest in Filipek. For the same reason as stated above, the presumption of joint tenancy has been overcome by the finding of the trial court and Mr. Filipek has no claim to the bank account.
The Cash in the Safe-Deposit Box.
Mr. Roth testified that his wife placed the money in the safe-deposit box. Although his testimony is not clear on this point, apparently he did not enter the box while his wife was living. Mrs. Roth gave Mr. Filipek a power of attorney over the box which, of course, terminated on his notice of her death. Sec. 243.06, Stats.
The trial court found that the cash belonged to Mr. Roth "for the same reasons as stated regarding the bank account." In Anno. 14 A.L.R.2d 948, 954, it is said:
"In a clear majority of jurisdictions where the point has arisen, deposit of articles in a jointly leased or used safe-deposit box of itself works no change in title unless there is an express agreement that the contents of the box shall be joint property."
See also Anno. 101 A.L.R. 832 and Anno. 113 A.L.R. 573, 575.
Here the contract leasing the safe-deposit box is not in evidence. Therefore, there is no basis on which it can be said that a joint tenancy was created in the money found in the safe-deposit box. The problem is determining who owned the cash when it was placed therein.
The trial court found that the source of all the assets in this case was Mr. Roth's earnings. As appellant Filipek points out, this finding was based on a faulty recollection of the record. Mr. Roth himself testified that his wife realized about $1,200 from the sale of some real estate in 1950 or 1951. With the exception of $1,350 in United States savings bonds in joint names, the contents of the box other than the cash were the individual property of Mrs. Roth. We consider this persuasive evidence that the money belonged to Mrs. Roth. It is unlikely that she would commingle her own funds with those of her husband in the bank accounts.
We conclude that the $1,480 cash in the safe-deposit box is an asset of Mrs. Roth's estate.
Mr. Filipek was adopted by other persons prior to the marriage of Mr. and Mrs. Roth. Under sec. 48.92, Stats., his rights as next of kin to his natural mother have been terminated notwithstanding the fact that prior to 1955 he was her next of kin under sec. 322.07, Stats. 1953. Estate of Hood (1931), 206 Wis. 227, 239 N.W. 448. The document purporting to be Mrs. Roth's will has not been admitted to probate. If it is, Mr. Filipek stands to inherit the money. If not, Mr. Roth does.
By the Court. — Judgment reversed, and cause remanded for proceedings consistent with the opinion. No costs to be taxed on this appeal.