Woodward v. Auyong

  This is an action brought by Edward Woodward against Sam H.
Auyong, administrator of the estate of Flora E. Wright, otherwise
known as Flora E. Woodward, deceased, to recover the sum of $1739
which had been upon ordinary commercial deposit in the Chinese
American Bank to the credit of "Mrs. Flora E. Woodward and/or
Edward Woodward" but had been withdrawn by the deceased intestate

prior to her death and deposited by her to her individual account
in the same bank. Subsequently, by amendment, Worth O. Aiken,
Esq., the deputy territorial treasurer in charge of the
liquidation of the bank, appeared and the action proceeded
against both defendants in their representative capacities.
  Upon the trial below the plaintiff had a verdict and the
administrator prosecuted exceptions. The parties to the appeal
will hereafter be referred to as "appellant" and "appellee"
respectively. By stipulation between appellant and appellee, the
cause was submitted to the two remaining justices of the court
before whom the cause was argued. The only exception that may be
noticed is that to the verdict as being contrary to the evidence.
  It is undisputed that on May 18, 1932, appellee and the
deceased intestate, both of whom were gainfully employed and who
were and had been for about sixteen years living together
informally as husband and wife, mutually agreed to pool their
earnings, with the right of survivorship in the common fund
thereby created and as thereafter increased by mutual
contribution thereto, and for that purpose established the bank
account in question; that the initial deposit ($173.96) was made
by the deceased but subsequent deposits were made
indiscriminately by both, those of the appellee, consistently
with his salary, being the larger; that prior to the creation of
the account in question the right of either to make withdrawals
therefrom during their joint lives was not discussed between the
parties, but after the creation of the account and between that
time and July 24, 1933, when the deceased made the withdrawal
complained of, each with the knowledge and consent of the other
withdrew small amounts necessary for their personal needs; that
the expenses of the household were borne by the appellee and the
withdrawals made by him for that purpose were larger and more
frequent; that on July 24, 1933, all

the money to the credit of the account in question, with the
exception of a few cents, was withdrawn by the deceased and
redeposited by her in the same bank in her individual account;
that the withdrawal so made by the deceased was without the
knowledge or consent of the appellee and was apparently made in
retaliation of some real or fancied wrong done her by him.
  This evidence is amply sufficient to sustain a finding that on
or about May 18, 1932, by the agreement between the parties
themselves and the contract between them and the bank, they
thereupon became joint owners of the deposit in question as it
then existed or as thereafter increased by mutual contribution
thereto, with the right of survivorship, qualified by the
limitation that neither of the parties during their joint lives
might make withdrawals from said deposit without the consent of
the other and that the withdrawal made by the deceased intestate
on July 24, 1933, was in derogation of the rights of the appellee
and constituted pro tanto a conversion of said deposit.
  The appellant contends that the rights of the codepositors in
the deposit in question are governed by the provisions of section
6586, R.L. 1935, quoted in the margin,1 and that when
withdrawn on July 24, 1933, the amount of the withdrawal became
immediately vested in the deceased

intestate as her separate property. Assuming that the contract as
between the codepositors themselves was the same in legal effect
as the contract of the codepositors and the bank, this might be
so. The statute, however, is the measure of the reciprocal
rights, duties and obligations of the respective parties to the
bank deposit and not of those of the codepositors between
themselves. Where an account is opened in the form prescribed by
the statute, in the absence of evidence to the contrary, the
presumption immediately arises that the interests of the
codepositors are those of joint tenants. Where it appears,
however, that the rights of the codepositors have been otherwise
limited or modified as between themselves, the terms of the
deposit as to the rights of the codepositors between themselves
become merely evidentiary. (Esling v. City Nat. Bank  Trust
Co., 278 Mich. 571, 270 N.W. 791.) The presumption created by
the statute is not conclusive. (Moskowitz v. Marrow, 251 N.Y. 380,
387, 167 N.E. 506; Marrow v. Moskowitz, 255 N.Y. 219,
174 N.E. 460; In Re Southard's Estate, 270 N.Y.S. 85, 86; In
Re Leakes' Estate, 296 N.Y.S. 720, 721; In Re McCarthy's
Estate, 299 N.Y.S. 715, 721.)
  The terms of the contract by which the common fund was created
are plain and unambiguous and, to the extent in respect to
withdrawals that they limit the interest of the parties thereto,
must be given effect, despite any inconsistency that may exist
between them and the right of withdrawal accorded by the terms of
the deposit and expressly sanctioned by the statute. As between
the bank and the codepositors the deposit was held by the former
for the exclusive use of the latter and could be legally paid by
the bank to either of them during their joint lives and such
payments so made would constitute a valid and sufficient release
and discharge to the bank for all payments so made on account of
said deposit. But as between the parties themselves any
withdrawal without the consent of the other

constituted a breach of the terms of the contract entered into
between them and a conversion pro tanto of the common fund on
deposit with the bank. (O'Connor v. Dunnigan, 143 N.Y.S. 373,
374.)
  In the instant case, differently from many of the cases
involving joint bank accounts, the issues of law as between the
codepositors depend for their solution upon the terms of a simple
contract entered into by parties sui juris and supported by a
valuable consideration. No confusion is interjected by the
presence of the relations of principal and agent, of donor and
donee, or of trustee and cestui que trust. The form of deposit
employed is one in common use and has assumed an importance in
the lives of persons of moderate means consistent with its
flexibility during the joint lives of the owners and its
immediate availability in the event of death without delay or
expense. The statutory definition of the rights of the parties to
such an account serves to remove the many doubts that before its
enactment existed as to the rights of depositors in such an
account. But no legal impediment exists to codepositors inter
se qualifying or limiting the legal incidents of such an
account. And where, as here, the codepositors between themselves
qualify and limit their respective interests in the deposit, the
qualification and limitation thus imposed and not the terms of
the statute control. Appellee as the survivor was entitled to
recover the amount wrongfully withdrawn from the bank by the
deceased on July 24, 1933.
  Consistently with the foregoing opinion, the exception to the
verdict is overruled.
1 "Sec. 6586. Joint deposits. When a deposit with a bank
shall be made by any person in the names of the depositor and
another person, or persons, and in form to be paid to either, or
the survivor or survivors, of them, deposits thereupon and any
additions thereto made by either, or any, of such persons, shall,
upon the making thereof, become the property of such persons, as
joint tenants, and such deposit and deposits, together with all
interest thereon, shall be held for the exclusive use of the
persons so named, and may be paid to either, or any, of such
persons, during the lifetime of all or any, or to the survivor,
or survivors, after the death of one or more of them; and such
payments, and the receipts or acquittances of the one to whom the
payments are made, shall be a valid and sufficient release and
discharge to the bank for all payments so made on account
thereof."