Hibbard v. Hibbard , 118 Ind. App. 292 ( 1947 )

Sometime in 1944, prior to July 5, the appellee Lewis C. Hibbard and his son Howard R. Hibbard, then 26 years of age, presented themselves at the Farmers Bank of Frankfort, Indiana, and Howard R. Hibbard, the son, stated to Carl W. Agnew, the bank's cashier, that he wanted to open a joint account between his father and himself and asked the procedure for doing so. Agnew produced a depositor's signature card upon which the following printed matter appears:

"JOINT ACCOUNT — PAYABLE TO EITHER OR SURVIVOR

"We agree and declare that all funds now, or hereafter, deposited in this account are, and shall be, our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common; and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn by, or upon the order of, either of us or the survivor.

"It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives."

This card was read by Agnew to both father and son and the meaning explained to them after which they both signed it and an account was opened in accordance with its terms. No money was deposited in the account on that day and shortly thereafter Howard, a pilot in the Army Air Force, was sent overseas. Periodically, beginning July 5, 1944, he mailed government checks to the Farmers Bank for deposit in said account. These checks were part of his salary as a pilot in the Army Air Force and aggregated, at the time of death, on June 8, 1945, the sum of $3,450. Lewis C. Hibbard, the father, made no deposits whatever to the credit of said account and shortly after his son's death withdrew the entire balance therein and converted the same to his own use.

The said Howard R. Hibbard died intestate leaving his widow Eileen Clifton Hibbard, whom he had married on January 22, 1944, as his sole and only heir at law. The said Eileen Clifton Hibbard was duly appointed administratrix of her deceased husband's estate and as such, through the medium of this suit, she seeks to void the joint account agreement heretofore set out and to recover the money deposited under its terms as assets of her decedent's estate.

She contends that the appellee's right to such money can be upheld only on the theory that said joint deposit agreement is a binding contract between the parties or that the money deposited thereunder was a gift in praesenti from the son to his father. The agreement is not a binding contract, she says, because it was executed (1) through the undue influence of the appellee, and (2) wholly without consideration. It is of no validity as a gift, she contends, because (1) her decedent, as the donor, never parted with control of the subject matter of the alleged gift, and (2) as no money was deposited in the account when it was opened the agreement must be construed as a mere promise to give in the future and therefore void.

It is the law that where all the funds in a bank account held in joint tenancy have been deposited by one party, it must appear that the other party's interest therein rests upon a valid 1. contract, gift or trust. 48 C.J.S., Joint Tenancy, § 3, p. 925. It becomes important therefore to determine the validity of the deposit agreement here involved. As above stated the appellant's first complaint is that such agreement was executed by her decedent through the undue influence of the appellee. She rests her case in that respect on two facts: (1) the appellee and her decedent were parent and child respectively; and (2) the appellee, the parent and presumably the dominant party, profited by the transaction. This, she contends, makes aprima facie case on the theory of undue influence and, there being no evidence or circumstances in rebuttal, the judgment against her is contrary to law.

In Wesphal v. Heckman (1916), 185 Ind. 88, 93, 113 N.E. 299, we find the following statement of principle:

"There are certain legal and domestic relations in respect to which the law raises a presumption of trust and confidence on one side and a 2. corresponding influence on the other. The relations of attorney and client, principal and agent, husband and wife, and parent and child belong to this class and there may be others. Where such a relation exists between two persons and the one occupying the superior position has dealt with the other in such a way as to sustain a substantial advantage, the law will presume that improper influence was exerted and that the transaction is fraudulent.

"This so-called presumption, when indulged, arises out of relations which exist between the contracting parties regardless of any facts or 3. circumstances having a tendency to show that a confidence was reposed by one of the parties and an influence gained by the other. Proof of the existence of such a relation between the parties establishes prima facie that the dominant party to such relation occupies a position of trust and confidence which he must not abuse."

In the Wesphal case, however, there were many facts and circumstances in addition to the mere relationship of the parties which had a bearing on the question of undue influence and to that extent so broad a statement of the rule was perhaps unnecessary. In almost identical language Keys v. McDowell (1913), 54 Ind. App. 263, 100 N.E. 385, lays down the same rule although, there also, there was much evidence on the question of undue influence in addition to the relation of confidence and trust that existed between the parties. So far as we have been able to discover this is the first occasion in Indiana upon which a court has been called upon to declare the rule upon a hypothesis which includes nothing but the bare relationship. There is nothing in the Wesphal and Keys cases, however, to indicate that the rule expressed therein would have been modified or changed had there been no evidence on the undue influence issue and we therefore hold that proof of the relationship of parent and child between the appellee and appellant's decedent, out of which the appellee profited, made a prima facie case of undue influence.

The legal presumption which aids the appellant vanishes however in the face of evidence to the contrary. The appellant's decedent was an adult 26 years of age at the time he executed the 4, 5. deposit agreement in controversy. In 1943 he was inducted into the U.S. Army Air Force where he qualified as a pilot, and the court takes judicial knowledge of the rigorous physical and mental requirements of such service. Prior to that time he had been employed by the Lockheed Aircraft Corporation for about a year and one-half. It thus appears that for at least two and one-half years prior to the execution of the deposit agreement he had been completely emancipated from parental dominion. The account was opened as a joint account with right of survivorship at his own request and in doing so he had the counsel of the bank's cashier, a party wholly disinterested in the ownership of any money that might be deposited therein. The appellee took no part in these negotiations and as far as the record discloses said nothing. Decedent made no deposits in the account until months later when he was overseas and far removed from immediate parental influence, yet he made them with full knowledge that, by the terms of the account, they became the joint property of the appellee with right of survivorship. The appellee appeared as a witness and the trial court had the opportunity to judge his age, health and vigor and to form its own opinion as to his character. Under such circumstances we think the question of undue influence was one of fact for the trial court to determine and having done so we are bound thereby.

The appellant next contends that the deposit agreement, under the terms of which the appellee possessed himself of the money in dispute, must fall for want of consideration. It is 6, 7, 8. true that said agreement neither expresses a consideration nor is there any evidence on the subject but we attach no significance to such facts. The statutory law of this state recognizes joint tenancies in personal property, § 51-104, Burns' 1933, but our courts have said that property so held does not go to the survivor unless it is so expressly stipulated in the instrument creating the estate.Johnson, Trustee v. Johnson (1891), 128 Ind. 93, 96, 27 N.E. 340. The present agreement provides for the right of survivorship in unequivocal terms and in language that is not susceptible to misconstruction. It necessarily follows that the appellant's decedent and the appellee had the right to create a joint tenancy with right of survivorship in a bank account and this they did by the execution of the written agreement in controversy. InKennedy v. McMurray (1915), 169 Cal. 287, 146 P. 647, the Supreme Court of California had under consideration a deposit agreement very similar in its terms to the one before us, signed by a father and his daughter. The father made all the deposits that were, from time to time, credited to the account and on his death his personal representative and the daughter each claimed the money. The court said it was the father's money, in his lifetime, and he could do with it as he pleased and there is no principle of law which would prevent him from making his daughter a joint owner with him of all money he chose to put in the account. The controlling question involved was whether the instrument clearly discloses an intention on the part of the father, when deposits were made by him to the account of himself and daughter, to constitute such deposits the joint property of himself and her. In determining that question the court said: "In our opinion the instrument executed by the deceased Kennedy and the appellant in opening the account with the bank clearly constituted the monies deposited therein and in controversy here the joint property of both of them and vested in the appellant survivor of such joint ownership all interest therein and the sole right to withdraw them." The instrument before us indicates unequivocally that the appellant's decedent intended to constitute all deposits made by him to the account involved the joint property of himself and father with right of survivorship. This he had the right to do, being of sound mind and under no restraint, and the fact that there was no consideration for his action is of no consequence because his declaration of intention as evidenced by the written agreement, consummated by his subsequent deposits, constituted a series of gifts in praesenti of a joint interest with right of survivorship in the money involved. See Matthew v. Moncrief (1943), 77 App. D.C. 221, 135 F.2d 645.

Judgment affirmed.

Royse, J. dissenting with opinion.

NOTE. — Reported in 73 N.E.2d 181.