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Hill v. Brown

Court of Appeals of Colorado, Second Division
Sep 9, 1975
540 P.2d 1144 (Colo. App. 1975)

Opinion

         Sept. 9, 1975.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

Page 1145

         H. Earl Moyer, Lakewood, for plaintiffs-appellees.


         Reams & King, Warren F. Reams, Vincent W. King, Grand Junction, for defendants-appellants.

         STERNBERG, Judge.

         This case originally arose as an interpleader action resulting from a familial dispute over the proceeds from a savings certificate in Modern Savings and Loan Association. An additional claim was joined which arose out of a dispute over a business owned by one member of the family and participated in by the other members. The two claims were consolidated for trial. At the close of plaintiffs' case defendants moved for a directed verdict, and upon denial, elected to stand on their motion. The jury found for plaintiffs on all claims, and defendants appeal. We affirm.

         Carrie Hill, now deceased, was the mother of plaintiffs George Hill and Ruth Cerney Irwin, and of defendant Isabella Brown. She opened two savings accounts in Modern Savings and Loan Association, the proceeds of which are in issue here. The first of these, opened in July 1969, was a joint account with right of survivorship in the names of the decedent, George Hill, and his wife. The second, also a joint account, was opened in March 1970 in the names of the decedent and Ruth Cerney Irwin.

         In January 1971 the decedent suffered a stroke and was hospitalized for some months. On March 9, the decedent, while in the hospital, executed a power of attorney to Isabella Brown. On March 11, Isabella Brown used the power of attorney to close the above described savings accounts. On that same day, the proceeds of these accounts were put into a third account in the name of the decedent, her husband W. E. Hill, and Isabella Brown. Decedent was released from the hospital in feeble health on March 18, and went to Isabella's home, where she remained until her death in July 1971.

         Several months after Carrie Hill's death, Isabella Brown transferred the funds from the third account to one in her own name. In April of the following year, she withdrew a portion of the money from that account. A month later, George Hill became aware of these transactions, made a personal examination of the records, and the proceedings leading to this suit followed.

         Isabella Brown and her husband Glen filed suit to compel Modern Savings and Loan Association to turn over to them the proceeds of the account appearing in Isabella Brown's name. Modern Savings filed an answer, counterclaim, and cross-claim, adding as defendants George Hill and his wife, admitting its refusal to turn over the funds, stating that it was on notice of posible claims thereto by the additional defendants, and seeking relief in the nature of interpleader. That action was followed by this suit by George Hill, his wife Ruth Hill, and Ruth Cerney Irwin against Isabella Brown for the proceeds from the account, and setting forth an additional derivative claim by Ruth Cerney Irwin against Glen Brown for the sum of $5,000. This derivative claim was premised on an allegation that Glen Brown had wrongfully written himself a check on a business owned by Ruth Cerney Irwin and in which he served as an officer and employee. The Brown's suit against Modern Savings and Loan, the interpleader action, and this suit against the Browns were consolidated for trial under the name appearing in the caption above.

          Defendants' first allegation of error is that since under s 11--42--116, C.R.S.1973, each joint tenant individually may withdraw any sums from a joint tenancy account, it follows that any joint tenant can unilaterally sever all the interests of the other joint tenants by means of such withdrawals. Thus, the argument goes, since Carrie Hill personally had the legal right to withdraw all of the money in the joint accounts with plaintiffs, thereby severing their interests, such withdrawal would not be subject to attack.

         Without discussing the effect of such a withdrawal by a joint tenant, we note that here the evidence is unequivocal that Carrie Hill did not personally withdraw these funds from the original joint tenant accounts with the plaintiffs, but rather that Isabella Brown did so by using a power of attorney. It is this power of attorney which was attacked by plaintiffs at trial as being obtained by the exertion of undue influence upon the donor of the power; thus there is no merit in defendants' contention on this issue.

          Defendants' second allegation of error is that the law of fiduciary and confidential relationships was erroneously applied. Plaintiff established such relationships between defendant and her mother by facts almost identical to those found to be sufficient in Columbia Savings & Loan Ass'n v. Carpenter, 33 Colo.App. 360, 521 P.2d 1299, Rev'd on other grounds sub nom, judkins v. Carpenter, Colo., 537 P.2d 737. Thus, a rebuttable presumption of undue influence was raised which placed the burden of going forward on defendant. Judkins v. Carpenter, supra. Defendant, however, presented no evidence in rebuttal and therefore the presumption raised was sufficient to entitle plaintiff to favorable judgment. See Zink v. Carlile, 126 Colo. 208, 248 P.2d 306.

          Defendants' last contention of error challenges the submission of the matter to the jury on a constructive trust theory. In making such submission the trial court relied on 5 A. Scott, Trusts s 462.2, which states as follows:

'A constructive trust . . . is imposed in order to prevent unjust enrichment. This unjust enrichment may arrive out of the wrongful acquisition of the title to property. This is the case where the title is acquired by fraud or duress or undue influence. . . .' See Botkin v. Pyle, 91 Colo. 221, 14 P.2d 187.

         In the instant case, there was sufficient evidence to support a finding that there existed a confidential relationship between defendant and her mother at the time the power of attorney was granted. Since the existence of such a relationship raised a presumption of undue influence which was not rebutted by defendant, and since defendant acquired an interest in the monies in dispute by means of the transfer she effected through exercise of the power of attorney, the trial court could properly submit the cause to the jury on a theory of constructive trust.

         Because defendant Glen Brown's appeal is premised on the assertion that as a result of the above errors, he did not receive a fair trial on the derivative claim, our conclusions on the issues raised by Isabella Brown are also dispositive of his appeal.

         Judgment affirmed.

         PIERCE and VanCISE, JJ., concur.


Summaries of

Hill v. Brown

Court of Appeals of Colorado, Second Division
Sep 9, 1975
540 P.2d 1144 (Colo. App. 1975)
Case details for

Hill v. Brown

Case Details

Full title:Hill v. Brown

Court:Court of Appeals of Colorado, Second Division

Date published: Sep 9, 1975

Citations

540 P.2d 1144 (Colo. App. 1975)