Opinion
Page __
__ Cal.App.2d __ 236 P.2d 230 PATERSON v. COMASTRI et al. Civ. 14444. California Court of Appeals, First District, Second Division Oct. 18, 1951.Hearing Granted Dec. 13, 1951.
Subsequent opinion 244 P.2d 902.
Stanley Burke, San Francisco, for appellant.
Thomas P. Kelleher, Frank J. Fontes, San Francisco, for respondents.
GOODELL, Justice.
Appellant filed three actions against respondent Alcide Comastri, in one of which American Trust Company was joined as a defendant, in another Hibernia Savings & Loan Society, and in the other Bank of America N. T. & S. A. The subject matter of the actions (which were consolidated and tried together) was the ownership of three joint tenancy accounts, one in each bank. It was stipulated that the banks were [236 P.2d 231] merely stakeholders. The court made findings in each case, holding that appellant should recover nothing. From judgments entered thereon the plaintiff has appealed.
Appellant and Mary Blair Gilmour were sisters. After Mr. Gilmour's death in the early 1930's Mrs. Gilmour opened the three accounts in the names of herself and appellant as joint tenants. On July 7, 1945 Mrs. Gilmour married respondent Comastri and about a month later she caused the three accounts to be transferred in the respective banks from the Gilmour-Paterson names into the names of Mary B. Comastri and Alcide Comastri, in joint tenancy. Appellant learned of these transfers only after Mrs. Comastri's death, which was on January 8, 1947.
In each of the complaints it was alleged that the transfer 'effected a severance of the joint tenancy' with plaintiff 'and to the * * * monies standing on deposit with said bank and created a tenancy in common therein between said deceased and the plaintiff which tenancy in common remained operative and existing continuously thereafter' until Mrs. Comastri's death.
In each of his answers respondent Comastri alleged that all deposits in the accounts were the separate property of Mary Comastri, and that plaintiff at no time had any right, title or interest therein, nor did she at any time exercise any right or control over them, but that both sisters 'treated said sums of money and said accounts as the sole and separate property of Mary Blair Comastri.'
Appellant's position is stated in her brief as follows: 'Appellant is not claiming joint tenancy in the monies transferred to the final accounts, but rather that her sister was privileged to withdraw one-half of the monies, and having done so, effected a severance of the unity of title, upon completion of which act, appellant became entitled as a tenant in common to one-half of the whole of each deposit existing at the time.' For such one-half appellant seeks a money judgment and a decree quieting her title.
Respondent's position is that Mrs. Comastri had the right to appropriate all these funds to herself for two reasons: First, because in law and in fact she was the real owner of the money, and, second, because the interests acquired by appellant 'are by implication or express contract subject to destruction.'
The Bank of America account was opened on December 4, 1934 with the deposit of $649.68, and at the time of the transfer from the Gilmour-Paterson names there was $6,497.49 therein.
The Hibernia account was opened on December 6, 1934 with the deposit of $4,000, and at the time of the transfer there was $6,486 therein.
The American Trust Co. account was opened on January 6, 1939 with the deposit of $210, and at the time of the transfer there was $5,385.63 therein.
Respondent Comastri, as survivor of the joint tenancies created in August, 1945, claims the balances in all three accounts.
The only question in the case is whether, as appellant contends, the three accounts were joint tenancy accounts in the true legal sense or, as the court held, merely accounts owned solely by Mary Gilmour Comastri and carried in the Gilmour-Paterson names for her own purposes.
It is undisputed that all three accounts were opened with Mrs. Gilmour's money; that the withdrawals from time to time were all made by her; that the passbooks were held by her throughout, and that the transfers in August, 1945, were negotiated by her without the knowledge or consent of appellant. Appellant does not dispute that all deposits were made by Mrs. Gilmour except one for $2,000 which the appellant claims to have made on September 11, 1936, (but the court found otherwise).
The court found that Mrs. Gilmour never intended, and appellant never understood or believed, that the addition of appellant's name endowed her with a vested property interest. It found that the accounts were not joint tenancy account; that Mrs. Gilmour and appellant agreed that they would have a different character, namely, that of sole and absolute ownership in Mrs. Gilmour with appellant succeeding upon Mrs. Gilmour's death to whatever was left; that the joint tenancies created in the names of [236 P.2d 232] Mary and Alcide Comastri were 'conclusive evidence of the intention of the depositor to vest title to the deposit[s] and all additions thereto in the survivor, Alcide Comastri'; and that the presumption arising from the form of the accounts in the Gilmour-Paterson names had been overcome by evidence that the tenancies were in truth not joint tenancies, but that Mary was the sole and exclusive owner with the absolute power of appropriation and disposition.
When the Bank of America account was opened a writing was signed by Mary B. Gilmour and Jessie H. Paterson entitled 'Joint Tenancy and Power of Attorney Agreement' reading in part as follows: 'The undersigned depositors agree as follows with Bank of America * * * (1) That this account is to be carried * * * as a savings account * * * (2) That all funds now to the credit of or which may hereafter be placed to the credit of this account are and shall be the property of the undersigned as joint tenants to be withdrawn as follows: Upon the signature * * * of * * * either * * * of us or of the survivor * * *'.
In 1943 when the passbook for the account was lost or mislaid, a new book was issued in the same Gilmour-Paterson names and a new agreement was signed by both in substantially the same form as the original agreement.
When the American Trust account was opened Mary B. Gilmour and Jessie H. Paterson signed a writing entitled 'Subscription to by-laws and to survivorship agreement', reading in part as follows: 'And we further agree, with each other and with the Bank, that all moneys now or hereafter deposited by us or either of us with the Bank in this account * * * shall be so deposited, and shall be received and held by the Bank, with the understanding and upon the condition that said money as deposited, without consideration of its previous ownership, and all interest or dividends thereon and all accumulations thereof, shall be the property of both of us as joint tenants, and shall be payable to and collectible by either of us during our joint lives, and after the death of one of us, shall belong to and be the sole property of the survivor and shall be payable to and collectible by such survivor.'
When the Hibernia account was opened a card was filled out and signed reading as follows:
'Mary B. Gilmour or Payable to either or to 18 849 (Mrs.) Jessie H. Pat- the survivor of them erson
'I hereby agree to the by-laws and rules of The Hibernia Savings and Loan Society as to all deposits and withdrawals made on this account.
'[signed] Mrs. Mary B. Gilmour
'[signed] (Mrs.) Jessie H. Paterson'
Beneath is the data respecting the residence, birthplace and mother's maiden name of each signer.
The findings summarized above were based on appellant's testimony respecting the circumstances of the opening of the accounts, on conversations with Mrs. Gilmour during the ten-year period, on appellant's ideas as to the meaning of a joint tenancy account, and on the fact that Mrs. Gilmour made all the deposits and withdrawals and always held on to the passbooks. Although her testimony was very lengthy and repetitious, nothing much was brought out beyond what we have just said.
She testified that in two of the three instances her sister had asked her to accompany her to the bank for the purpose of opening a joint tenancy account; she had done so and had signed whatever there was to sign. On the other occasion the cards were mailed to her for signature. Thereafter from time to time she said her 'sister would occasionally tell me this account has earned so much interest or I have added to this.' She testified that when the Bank of America and American Trust accounts were opened her sister had said 'it was a joint account, and it was to come to me automatically at her death.' She testified that on one occasion her sister said 'I have so much money I don't know what to do. I am worth $125,000, and you have done so much * * *'. She gave as her understanding of a joint account that it was 'the property of both of us during the years the joint account existed * * * the one-half to one and one-half to the [236 P.2d 233] other, if that person dies it then becomes the entire property of that person.' She testified that her sister talked about nothing but her investments, and that she, appellant, was thoroughly familiar with them. She recalled her sister 'talking constantly month in and month out about her finances and what I would receive from her, and all that sort of thing. It went on for years.'
With respect to the Bank of America and American Trust accounts this case is ruled by Estate of Gaines, 1940, 15 Cal.2d 255, 100 P.2d 1055, 1061. There two joint tenancy cards showed that the joint tenants agreed that all sums deposited by either would be owned by them jointly with right of survivorship. The issue before the probate court was essentially the same as that in this case, namely, whether the bank accounts which bore, as these do, all the indicia of true joint tenancies were in law and in fact that which they purported to be. The probate court found, as the trial court found here, that it was not the intention of the parties to create joint tenancy accounts. In reversing the judgment the Supreme Court said: 'It follows that the findings of the trial court cannot be sustained. The evidence clearly establishes that decedent, not acting under fraud or undue influence, and with full knowledge and understanding of the legal effect of his acts, made transfers of personal property to himself and appellant in joint tenancy. The writings effecting the transfers were clear and complete in their terms, and the record does not contain sufficient evidence to bring the case within any of the exceptions to the parol evidence rule.'
There were several factors in that case which are present herein, namely, the control and possession of the passbooks by the person who opened the accounts and made all the deposits therein and withdrawals therefrom. In the Gaines case no significance was attached to those factors. See, in the same connection Kennedy v. McMurray, 169 Cal. 287, 295, 146 P. 647.
In the Gaines case the nephew after his uncle's death had repeatedly and unreservedly stated that he understood and believed that his uncle 'did not intend that the property should go to him individually.' (Nothing anywhere approaching this is to be found in this record.) But the court held that such utterances, and others like them, were simply expressions of the nephew's opinion or conclusion, and not competent evidence respecting an agreement. One statement, however, was held to be competent evidence as an admission against interest, and that was the repetition by the nephew, without any denial or challenge by him, of what his uncle had said respecting intent. This, however, was held to be insufficient to vary or affect the terms of the written agreement.
It is solely on appellant's testimony and conduct that respondent relies to support the findings. Aside from the fact that Mrs. Paterson never had the passbooks in her possession, and never (as the court found) deposited anything in the accounts or withdrew therefrom, the only piece of evidence which might be claimed to weaken appellant's position is her statement that she felt that if she 'needed money * * * my sister would certainly have allowed me to have a certain sum from her bank, as I would from my own if she needed money.' This at most indicated an inaccurate comprehension by appellant of her legal rights as a joint tenant.
Appellant, on the other hand, did not hesitate to assert her joint tenant status, as appears from the following:
'Q. She had free will to do as she pleased with these moneys, is that correct? A. I don't think she had free will just exactly to give my money away * * *
'Q. You don't recollect any time she gave away any of your money? A. Well, I would say when she married a man, another man, and my money was in these accounts, I would feel she was giving my money away and would ask my permission to do it.' Her sister, she said, 'never thought of any other way except 'our account'.'
As in the Gaines case, the most that can be said respecting appellant's testimony is that she freely expressed her views, such as they were, in answer to counsel's questions, but even such parol evidence does [236 P.2d 234] not by any means show any agreement or understanding running counter to the written agreements.
As said in the Gaines case 'The writings effecting the transfers were clear and complete in their terms, and the record does not contain sufficient evidence to bring the case within any of the exceptions to the parol evidence rule.'
The fact that the evidence just discussed went in without objection, or even under the examination of appellant's own counsel, makes no difference. It must be disregarded as of no legal import. Its incompetency to vary or affect the written contracts appears as a matter of law. Lifton v. Harshman, 80 Cal.App.2d 422, 423, 182 P.2d 222, and cases cited.
The Gaines case was a reaffirmance of the law as it had been settled in this state for 25 years. In Kennedy v. McMurray, 1915, 169 Cal. 287, 146 P. 647, 650, supra, the account was opened by Kennedy with the deposit of his own $3,000 (just as in the Gaines case both accounts were opened with Gaines' own money, and here the three accounts were opened with Mrs. Gilmour's). In discussing the question whether Kennedy in opening the account intended to give his daughter a joint interest therein the court said: 'Whether he intended to do so or not is the essential element in the case, and if that clearly appears from the instruments executed by him and his daughter when he made the deposit in their names we cannot look beyond those instruments. If it is clear on the question of intent the right of the parties must be determined solely from its consideration. No parol evidence could affect it.' (Emphasis added.)
Estate of Harris, 1915, 169 Cal. 725, 726, 147 P. 967; Estate of Gurnsey, 1918, 177 Cal. 211, 215, 170 P. 402, 403, and Siberell v. Siberell, 1932, 214 Cal. 767, 774, 7 P.2d 1003, follow Kennedy v. McMurray.
In Estate of Gurnsey the court said: 'The agreement * * * is in no respects uncertain or ambiguous. Its meaning is entirely clear. No testimony by either party was admissible to change its terms or its legal effect, in the absence of fraud or mistake. * * * The effect of the agreement was to create a joint estate in the property to which it relates, and the evidence introduced could not, under these circumstances, be allowed in any way to change the terms or legal effect of the agreement. The title to the money deposited passed out of the community at the time of the deposit, and it then became the joint property of the husband and wife, invested with all the attributes of such property, whether the wife understood its exact nature when she signed the agreement and accepted its benefits or not.' (Emphasis added.)
See, also, Siberell v. Siberell, 214 Cal. 767, 774, 7 P.2d 1003, supra.
Kennedy v. McMurray was followed by this court in Conneally v. San Francisco Sav. & Loan Society, 70 Cal.App. 180, 182, 232 P. 755; Hill v. Badeljy, 107 Cal.App. 598, 605, 290 P. 637, and Estate of Fritz, 130 Cal.App. 725, 729, 20 P.2d 361. It has been followed in other district court of appeal decisions including Crowley v. Savings Union etc. Co., 30 Cal.App. 144, 151, 157 P. 516; Estate of Fingland, 129 Cal.App. 395, 397, 18 P.2d 747; Estate of McCoin, 9 Cal.App.2d 480, 482, 50 P.2d 114 and Tobola v. Wholey, 75 Cal.App.2d 351, 357, 170 P.2d 952.
With respect to the Hibernia account, where the writing was less formal than in the other two banks, respondent in discussing the parol evidence rule says: 'We must * * * conclude that no distinction need be made in the instant case between the accounts in these banks employing the printed form of signature card, and the account in the Hibernia Savings and Loan Society'. This dispenses with any further discussion on that score.
In conclusion: for the reasons already given and on the authorities cited, the three Gilmour-Paterson accounts must be held to have been true joint tenancy accounts. 'A joint interest', says § 683, Civ.Code, 'is one owned by two or more persons in equal shares * * *'. 'One of the characteristics of joint tenancy is the equality of the interest held by the respective tenants; Civ.Code, § 683 * * *.' Stark v. Coker, 20 Cal.2d 839, 844, 129 P.2d 390, 393.
[236 P.2d 235] The 'appropriation' (quoting respondent's language) of the three accounts was accomplished by Mrs. Comastri as follows: she and her husband went to each of the three banks where she explained that she desired to change the Gilmour-Paterson account into the names of herself and her husband as joint tenants, and this was done. In each instance the bank made out a new passbook in the new names and had the parties sign the signature cards and whatever other papers were necessary to effect the changes. The new accounts were given new numbers. In each instance the interest which had accrued to the Gilmour-Paterson account was carried over and became a credit on the new account. At that time there was a balance of $6,497.49 in the Bank of America account, $6,486 in the Hibernia account, and $5,385.63 in the American Trust account, in the Gilmour-Paterson names, and these balances became the opening deposits in the respective banks in the names of Mary and Alcide Comastri.
'It has been consistently held' said the court in Stark v. Coker, supra, 20 Cal.2d 839, 844-845, 129 P.2d 390, 'that one joint tenant has not by reason of the relationship any authority to bind his cotenant with respect to the latter's interest in the common property. See Oberwise v. Poulos, 124 Cal.App. 247, 12 P.2d 156; Simpson v. Bergmann, 125 Cal.App. 1, 13 P.2d 531; Swartzbaugh v. Sampson, 11 Cal.App.2d 451, 54 P.2d 73.' Hence in making the appropriation Mrs. Comastri could in no way bind appellant as to the latter's share or interest without her consent, and it is undisputed that appellant knew nothing of the transfers until at least 17 months after they were made. Mrs. Comastri could, of course, dispose of her own interest without such consent. Wilk v. Vencill, 30 Cal.2d 104, 108-109, 180 P.2d 351. The appropriation effected a severance of the joint tenancies, Hammond v. McArthur, 30 Cal.2d 512, 514-515, 183 P.2d 1; Delanoy v. Delanoy, 216 Cal. 23, 26, 13 P.2d 513; Green v. Skinner, 185 Cal. 435, 438, 197 P. 60, as contended by appellant.
The judgments are, and each is, reversed.
NOURSE, P. J., concurs.
DOOLING, Justice.
I concur, somewhat reluctantly, because I feel that Estate of Gaines, 15 Cal.2d 255, 100 P.2d 1055 is controlling. There is respectable authority for the rule that while under sec. 15a of the Bank Act, Gen. Laws, Act 652, a bank account in the form of a joint tenancy is conclusively presumed upon the death of one depositor to constitute a joint tenancy in fact and to vest title in the survivor, this is not so where the persons are both living or where withdrawals have been made during the lifetime of both depositors, and the presumption of joint tenancy from the from of the account can in such cases be rebutted by evidence showing another intention of the parties. Wallace v. Riley, 23 Cal.App.2d 654, 74 P.2d 807; Wallace v. Riley, 23 Cal.App.2d 669, 74 P.2d 800; Spear v. Farwell, 5 Cal.App.2d 111, 42 P.2d 391; In re Kellogg, 41 Cal.App.2d 833, 107 P.2d 964; Copprell v. Copprell, 87 Cal.App.2d 4, 195 P. 868; Bassi v. Bassi, 89 Cal.App.2d 886, 202 P.2d 96.
But Estate of Gaines, supra, held squarely that a writing signed by the parties creating a joint tenancy in a bank account cannot be varied by parol, and so held without considering the effect of sec. 15a of the Bank Act. See 15 Cal.2d at pages 264-265 and 267, 100 P.2d 1055. It seems to me that this holding leaves no room for the distinction made in the cases cited. If the writing is governed by the parol evidence rule it cannot be varied by parol whether the parties are living or dead.
Some confusion is created by the later case of Wheeland v. Rogers, 20 Cal.2d 218, 124 P.2d 816, which permitted parol evidence to prove that a bank account joint in form was not joint in fact on the ground that the account was created before the adoption of sec. 15a of the Bank Act; a completely untenable distinction if the parol evidence rule applies. However since these bank accounts were created after the enactment of sec. 15a of the Bank Act, Estate of Gaines, supra, controls us rather than Wheeland v. Rogers, supra.
[236 P.2d 236] In my judgment the rule of Wallace v. Riley, supra, is the more reasonable one since parties undoubtedly frequently create bank accounts joint in form for the sole purpose of vesting title in the survivor without intending a gift inter vivos. But until the Supreme Court clarifies Estate of Gaines, supra, I feel bound by that decision.