Opinion
October 10, 1955 —
November 8, 1955.
APPEAL from a judgment of the county court of Waushara county: GAD JONES, Judge. Modified and, as modified, affirmed.
For the appellant there was a brief by Lehner Lehner of Princeton, and oral argument by Philip Lehner.
For the respondent there was a brief by Earl F. Kileen of Wautoma, attorney, and Benton, Bosser, Fulton, Menn Nehs of Appleton of counsel, and oral argument by David L. Fulton.
Bertha Schley, a resident of Waushara county, died testate on September 2, 1954. An instrument dated June 14, 1950, was presented to the court as her last will and testament. By the terms of the will her husband, William Schley, was bequeathed the sum of $5. William Schley filed written objection to the propounded will and also filed a claim for her entire estate, based upon an alleged oral agreement that all of the property of the parties should be placed in joint tenancy with right of survivorship and by the execution of a joint will which would leave all of said property to the survivor. In the alternative he claimed certain sums that had been his individual property and other sums which he had invested in the decedent's home and for taxes he had paid thereon.
From the record the following facts appear: That Bertha Eichsteadt and William Schley were married on December 8, 1945. Each was then fifty-four years of age and each had been previously married. Each of the parties had some property. Mrs. Schley owned a home in Wautoma and 120 acres of unimproved land in the town of Richford. In addition thereto Mrs. Schley had money on deposit in the Peoples Bank of Coloma, and some other personal property. The principal asset of Mr. Schley at the time of the marriage was a $5,000 note of his son, Fred Schley, which was secured by a real-estate mortgage upon the farm sold to him by Mr. Schley.
On December 13, 1945, William Schley executed a will in which he gave $1,400 to his children and the balance to his wife, Bertha Schley. On February 2, 1946, Bertha Schley conveyed to William Schley and Bertha Schley, husband and wife as joint tenants, her house in Wautoma and the land in the town of Richford. On June 15, 1946, a certificate of deposit for $1,200 was issued by the Peoples Bank of Coloma payable to William Schley and Bertha Schley, either or survivor. Said certificate was renewed on June 14, 1947, for the same amount payable to both parties, either or survivor. On June 15, 1948, when the certificate was again renewed it was issued payable to Bertha Schley only. By 1952, $400 had been withdrawn and thereafter a certificate was issued in the amount of $800 payable to Bertha Schley, Mary Zuehlke, and Mildred Zuehlke, either or survivor. $20 was added to this certificate in 1953 and at the time of the death of Mrs. Schley she had in her possession in her lockbox a certificate of deposit issued by the Peoples Bank of Coloma, payable to Bertha Schley, Mary Zuehlke, and Mildred Zuehlke, either or survivor, in the sum of $820.
On August 19, 1946, a certificate of deposit for $1,800 was issued by the Peoples Bank of Coloma, payable to William and Bertha Schley, either or survivor. On August 19, 1947, $600 of the latter certificate of deposit was drawn in cash and for the balance of $1,200 a certificate of deposit payable to Bertha Schley alone was issued by the bank. In 1948 an additional $800 was withdrawn by Bertha Schley and a certificate for $400 was issued by the bank payable to Bertha Schley only. In 1949 the renewal of said certificate for $400 was issued by the bank payable to Bertha Schley, Robert Zuehlke, and Mildred Zuehlke, either or survivor. Thereafter some additions were made at the time said certificate was renewed so that at the time of the death of Bertha Schley she had in her possession in her safety-deposit box a certificate of deposit in the sum of $459.20 payable to Bertha Schley, Robert Zuehlke, and Mildred Zuehlke, either or survivor.
On October 29, 1948, Mrs. Schley opened a savings account in the Peoples Bank of Coloma in the sum of $300, payable to Bertha Schley and Robert Zuehlke. This deposit was evidenced by a savings passbook issued by the bank. On June 15, 1949, an additional $400 was deposited in said account. The latter sum coincides with the $400 reduction in the $1,200 certificate of deposit which was reduced to $800. The deposit in the savings account was made on the same date. The balance of said savings on December 3, 1954, amounted to $737.86, of which $37.86 represents interest paid on the account and added thereto.
On February 19, 1947, William Schley assigned a $5,000 note and mortgage to William Schley and Bertha Schley, husband and wife, as joint tenants. On March 31, 1948, the note and mortgage were paid and the mortgage was satisfied. The note was paid by check and this check was presented at the Peoples Bank of Coloma on the same date. $1,000 was taken in cash and the bank issued two certificates of deposit, one for $1,200 and one for $2,800 payable to William and Bertha Schley. On April 1, 1950, William Schley withdrew $500 from the $2,800 certificate and a new one in the sum of $2,300 was issued in both names. On March 31, 1952, the $1,200 certificate was cashed by Bertha Schley and the $2,300 certificate was renewed in both names with the addition of $100. On March 30, 1953, Bertha Schley withdrew $1,200 of the $2,400 certificate of deposit and the balance of $1,200 was renewed in a certificate payable to both parties. On April 1, 1954, William Schley withdrew $500 of this amount and at the time of the death of Mrs. Schley there was on deposit in the Peoples Bank of Coloma the amount of $700 represented by a certificate of deposit payable to William Schley and Bertha Schley.
On July 23, 1948, a savings account was opened in the Union State Bank of Wautoma in the names of Mr. or Mrs. William Schley with a deposit of $500. On March 31, 1952, at the time Mrs. Schley cashed the $1,200 certificate at the Peoples Bank of Coloma and added $100 to the $2,300 certificate, there appears a deposit in the joint savings account in the Union State Bank in the sum of $1,100. On April 1, 1953, the day after Bertha Schley withdrew $1,200 from the joint account in the Peoples Bank of Coloma, there was deposited in the joint savings account in the Union State Bank the sum of $1,180.
On October 9, 1949, William Schley and Bertha Schley reconveyed the house and farmland to Bertha Schley. At the same time the attorney who drafted said deed drew a joint will which was executed by both parties, and by the terms of which the survivor would take all the property that either owned. Following the death of Mrs. Schley, her husband went to the lockbox to get the joint will but the same had been removed and had not been found at the time of the hearing in the trial court.
The trial court made findings of fact and conclusions of law, wherein it determined that the instrument propounded was the last will and testament of Bertha Schley and admitted the same to probate. It was further determined that Bertha Schley and her estate were not indebted to Mr. Schley in any sum whatever and his claim was disallowed. Judgment was entered pursuant to the findings of fact and conclusions of law on February 18, 1955, and William Schley has appealed therefrom.
The appellant first contends that the respective properties of each party were placed in joint tenancy pursuant to a valid agreement and that said agreement should be specifically enforced. The trial court held that if the parties had ever made a joint agreement such agreement with reference to the real estate was rescinded by the reconveyance thereof to Bertha Schley. That appears without dispute. The appellant, however, contends that the reconveyance of the real estate was made in consideration of the execution of the joint will. The only testimony thereon was that given by the scrivener, who did not so testify. The joint will is not in the record, and presumably it has been destroyed. There is no evidence that there were any contractual provisions in the will itself, and a joint or mutual will lacking contractual elements may be revoked at any time by either testator in the same manner as other wills. There was a failure to prove any binding contract by the degree of proof necessary so far as the real estate was concerned.
As to the joint deposits in the Peoples Bank of Coloma a different situation is apparent. Prior to 1935, this court determined the rights of survivorship to funds deposited in his name and that of another according to the law of gifts. In 1935, in the case of Estate of Staver, 218 Wis. 114, 260 N.W. 655, this court adopted the contract rule. In that case it was held that delivery to the depositor of certificates of deposit payable to said depositor and a third person jointly creates legal ownership in both of such joint payees directly and further transfers, such as delivery of the certificates by the depositor to such third person, are unnecessary to entitle the third person thereto by right of survivorship. For a review of that and later cases see Kelberger v. First Federal S. L. Asso. 270 Wis. 434, 71 N.W.2d 257. In the latter case it was held that the determination of the interest which a survivor has in a joint deposit is dependent primarily upon the intention of the depositor and that this is a question of fact. See also Plainse v. Engle, 262 Wis. 506, 56 N.W.2d 89, 57 N.W.2d 586.
Our attention has not been called to any case decided by this court in which the rights of two named depositors during the lifetime of each were determined. Other states have adopted various rules, some by statute. Sec. 221.45, Stats., provides that when deposits are made in a bank in this state in the name of two persons, payable to either, or payable to either or the survivor, such deposit or any part thereof may be paid to either of the persons named, whether the other be living or not. This statute is clearly for the protection of the banks. Sec. 230.45(2), provides that any transfer or assignment of personal property from husband to wife, or from wife to husband, which conveys an interest in the grantor's personal property and by its terms evinces an intent to create a joint tenancy, shall be held to create such joint tenancy.
The only competent evidence in the record as to the agreement between the parties, or one of them and the bank, is the instruments evidencing the deposits. It is clear that when Mrs. Schley in 1946 had certificates issued payable to William Schley and Bertha Schley, either or survivor, this was an assignment of personal property from wife to husband which conveyed an interest in her personal property and by its terms evinced an intent on her part to create a joint tenancy between herself and her husband. Although under the statute she thereafter had the power to withdraw said funds, she did not have the power or right to appropriate and thereby destroy her husband's interest therein. When she made such withdrawals without the consent of her husband her acts severed the joint tenancy but did not destroy her husband's joint and equal interest therein. Those funds, once payable to either or the survivor, can now be traced to the two certificates, one for $820 and one for $459.20, that were found in her lockbox at the time of her death, or to the savings account in the amount of $737.86 in the Coloma bank. The amount represented by the above accounts is less than that deposited in the joint account in 1946. There is no evidence in the record as to the disposition of the balance and it must be inferred that it was used for living expenses of the parties. There have been some slight additions to the accounts but again it must be inferred that these were made from withdrawals from one of the joint accounts or from the interest earned upon such accounts, as there is no evidence that Mrs. Schley had any other income.
As to the $5,000 proceeds of the note and mortgage there is no evidence that would justify a holding that Mrs. Schley is responsible for any of the same. The first $1,000 was withdrawn by the two parties and that withdrawal was certainly with Mr. Schley's consent. The next $500 was drawn by him, and the further withdrawals by Mrs. Schley can be traced directly to the joint savings account in the Union State Bank.
As to the joint bank deposits, the trial court held that any agreement was not binding because it was never carried out, since each had and each exercised the right to withdraw the same without the consent of the other. From what has been stated above it is apparent that the trial court misconstrued the law applicable to joint bank deposits, and the judgment with reference thereto must be modified by providing that the claimant, William Schley, is entitled to one half of each of the following: The certificate for $820, the certificate for $459.20, and the savings account of $737.86 in the Coloma Bank.
By the Court. — Except as herein modified, judgment affirmed. Cause remanded for further proceedings in accordance with this opinion.