Negaunee National Bank v. Le Beau , 195 Mich. 502 ( 1917 )

Brooke, J.

(after stating the facts). It is the position of the appellant that the provision in the certificate indorsed on the ledger account and signed by the parties, to the effect that the money remaining in the account at the death of either shall belong to the survivor, is testamentary in character, and therefore void, citing Union Trust & Savings Bank v. Tyler, 161 Mich. 561 (126 N. W. 713, 137 Am. St. Rep. 523); State Bank of Croswell v. Johnson, 151 Mich. 538 (115 N. W. 464). In the latter case the fund in question was represented by a certificate of deposit which bore the following indorsement placed there by an officer of the bank:

“F. J. Battersbee, Cashier of the State Bank of Croswell: Issue a new certificate in place of this one and make said certificate payable to Thomas Parker and Alice Parker or the survivor of them.

his

“Thomas X Parker.”

mark

This certificate was then placed in a safety deposit box rented by Mr. Parker and the box and keys were given to Mrs. Parker. It was held in this court that Mrs. Parker was the owner of the fund because of the fact that Thomas Parker—

“intended to give her a present interest in this fund equal to his own, and that, in the event of his death, which he must have anticipated and which actually occurred on the second day after, to give her the entire fund. He did all that he could to carry out his intention and the question is, Did he go beyond an intention to make the gift? We are of the opinion that this question must be answered in the affirmative.”

In the case of the Union Trust & Savings Bank v. Tyler, supra, an officer of the bank at the request of the owner of the fund indorsed upon the book the following words:

“In the event of her death, this account is payable to her daughter, Catherine Gordon.”

We there held that the words indorsed upon the book were clearly testamentary in character, and therefore inoperative to convey an interest in the' fund, but the donee took the fund by reason of the introduction of evidence which tended to support the inference that the donor had given to her daughter the book itself representing the deposit prior to her death.

The case at bar, in our opinion, presents a situation quite different from either of those considered. Here the deposit was made under a certificate declaring the deposit to belong jointly to Euchrist Le Beau and Sophia Charles. The writing itself, quite apart from the testimony of the vice president of the bank, indicates on the part of Euchrist Le Beau the intention to create in his daughter Sophia Charles a present estate in the fund, equal to his own, together with the sole right to said fund in case of his death. This writing, therefore, does not constitute a testamentary disposition of the property of Euchrist Le Beau, but plainly amounts to a gift inter vivos. It is said on behalf of appellant that Euchrist Le Beau retained control over the fund by retaining possession of the passbook representing it. It is clear that' he retained no more control over the fund than did his daughter, Sophia Charles. Under the form of the deposit, with or without the passbook representing the same, either could have withdrawn the entire amount during the lifetime of the other. In this case it is not necessary to predicate determination upon the fact that the passbook prior to the death of Euchrist Le Beau was in the possession of the donee, and to draw an inference from that possession that the same was given to her by her father in his lifetime with the intention of giving her the fund represented thereby. He had already given her the'fund by his unequivocal act at the moment the deposit was made. Appellee relies upon the provision of Act No. 248, Pub. Acts 1909, section 3 of which (2 Comp. Laws 1915, § 8040) provides :.

“When a deposit shall be made in any bank or trust company by any person in the name of such depositor or any other person, and in form to be paid to either or the survivor of them, such deposits thereupon and any additions thereto, made by either of such persons, upon the making thereof, shall become the property of such person as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the persons so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them, and such payment and the receipt of acquittance of the same to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposits prior to the receipt by said bank of notice in writing not to pay such deposit in accordance with the terms thereof.”

It is asserted by appellant that said statute, if applicable, is unconstitutional for various reasons assigned. Without casting any doubt upon the validity of the legislation in question, and following our usual practice, we decline to consider this phase of the question, being able to reach a determination of the issue involved upon other grounds.

The decree of the court below is affirmed.

Kuhn, C. J., and Stone, . Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.