Esling v. City National Bank & Trust Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This suit in assumpsit was tried before the court without a jury. The appeal is from a judgment entered in favor of defendant. For sometime prior to August 17, 1932, plaintiff's grandmother, Mrs. Hannah C. Lewis, had a deposit in the defendant bank. On that date plaintiff and Mrs. Lewis went to the bank and opened a joint account in their names. This was accomplished by Mrs. Lewis transferring $2,000 from her individual account to the joint account of the two. Each of them signed a card which contained on its face the following:

"NOTICE "We certify that before signing, we read the notice on the reverse side of this card, relative to joint deposits, and we agree to the terms thereof."

On the reverse side of the card was printed:

"NOTICE — Where deposits are made in name of two persons, payable to either or the survivor, such deposits may be withdrawn in whole or in part, by either payee, irrespective of the source of the deposit or rights of the payee, as between themselves. In the case of death of one payee, payment may be made by the bank to the survivor.

"Payment by the bank to either payee before or after the death of the other, shall to the extent of such payment, satisfy all liability of the bank to both payees, their representatives and assigns. The bank may make such payment to one payee notwithstanding any notice, order or direction by the other payee or his legal representatives.

"These terms are applicable to both pass books and certificates and are in addition to the regular bylaws governing savings deposits."

The statute governing such deposits 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 persons as joint tenants, and the same together with all interest thereon, shall he 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 or 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 inwriting not to pay such deposit in accordance with the termsthereof." 3 Comp. Laws 1929, § 12063.

On November 10, 1932, Mrs. Lewis was informed by plaintiff, who had possession of the bank book, that she was going to withdraw the money from the bank. Mrs. Lewis protested against such withdrawal, and while plaintiff was on her way to the bank Mrs. Lewis, through another, telephoned the bank and stopped payment. This stop order was noted on the account. When plaintiff arrived at the bank and presented the book and demanded payment of the deposit she was informed of Mrs. Lewis' stop order and payment was refused. Plaintiff testified:

"The teller said, 'When there is a controversy between the two parties, we will have to have it ironed out between the parties.' I said, 'All right,' and went to my home. That is the last time I talked with anyone about the transaction until I talked with Mr. Green (the president of the bank) quite a while afterward."

Later the same day Mrs. Lewis came to the bank. While there she served written notice on the bank to pay no funds from this account except on her written order. Thereupon the funds from this joint account, amounting to $2,020, were withdrawn by Mrs. Lewis and redeposited in an account standing in her individual name. Some time later these and other funds which Mrs. Lewis had on deposit in the defendant bank were transferred by her to accounts in the names of other relatives. At the time suit was started, October 30, 1933, Mrs. Lewis was living; but her death occurred before trial in the circuit court.

Plaintiff's theory is that she is entitled to recover from the bank because it had no right to pay the deposit to Mrs. Lewis (who did not then have possession of the bank book) after plaintiff had made demand of payment as above recited. In this connection plaintiff asserts that the bank was not justified in refusing payment to her upon presentation of the pass book, notwithstanding the previous telephone stop order by Mrs. Lewis.

It is important to note that the bank teller through whom the joint account was made testified that at the time of the deposit Mrs. Lewis said that the money was to go to her granddaughter after Mrs. Lewis' death. This was denied by plaintiff. However, the testimony discloses facts which tend to negative an intent on the part of Mrs. Lewis that by opening an account in the joint names of herself and her granddaughter she was to release her right to, and control of, the money deposited. She was well advanced in years, enfeebled in health, and it was fair to assume that her necessities might require the use of this deposit in whole or in part. Obviously with this in mind Mrs. Lewis reserved the right to withdraw from this account. The undisputed testimony is that the money placed in this joint account belonged to Mrs. Lewis and the bank was aware of such being the fact, And further, both by plaintiff's own statement and by the order to stop, the bank knew Mrs. Lewis was opposed to payment being made to plaintiff. But assuming plaintiff, as well as Mrs. Lewis, could make withdrawals, the rights of plaintiff in this joint deposit during the lifetime of Mrs. Lewis are, under the facts of this case, rather definitely settled by former decisions of this court as well as those of other jurisdictions:

"Under the form of the deposit, with or without the pass book representing the same, either could have withdrawn the entire amount during the lifetime of the other." Negaunee NationalBank v. LeBeau, 195 Mich. 502 (L.R.A. 1917 D, 852).

"I think it may be a matter of common knowledge that many of them (married people) have their savings deposited in banks payable to them or either of them or the survivor of them, or words of similar purport. The legislature of the State has taken cognizance of this fact and has provided a rule ofevidence in such cases. 2 Comp. Laws 1915, § 8040 (being 3 Comp. Laws 1929, § 12063). But it has gone no farther." Ludwig v. Bruner, 203 Mich. 556.

In construing the provisions of the New York statute which, as to the rights of joint depositors while both are living, is strikingly similar in its terms to the Michigan statute, Justice Cardozo in an exceedingly well-reasoned opinion states:

"The statute, as I view it, does not mean that between the persons named as depositors a joint tenancy ensues at once and automatically, as an irrebuttable presumption, with the result that neither will be permitted even during the joint lives to prove against the other that the deposit was made with a contrary intention. For the bank which has paid, the form of the account is, indeed, an absolute protection, unless written notice has been given by either one of the depositors (cf. Banking Law, §§ 148, 198) 'not to pay such deposit in accordance with the terms thereof.' For the depositors themselves, the form is not conclusive in any contest during their joint lives as to the title to the moneys, nor conclusive after the death of either as to moneys then withdrawn. * * *

"The plain implication is that as between the depositors themselves, the form of the deposit gives rise to a presumption and nothing more. * * *

"It (the bank) is protected in the absence of written notice that it is 'not to pay such deposit in accordance with the terms thereof.' When such a notice is given and a contest in the courts ensues during the joint lives of the depositors, distribution is to be determined, not solely by the terms of the deposit, which then cease to be conclusive, but by the realities of ownership." Moskowitz v. Marrow, 251 N.Y. 380, 396 (167 N.E. 506, 66 A.L.R. 870).

In a recent decision in this court it is held that the act of a woman who had created a similar joint account in the name of herself and a nephew might later of her own motion have the nephew's name stricken from the bank records, thus leaving it an account in her individual name. In speaking of the respective rights of this woman and her nephew, Justice WIEST said:

"It is clear that Mrs. Currey felt very friendly toward Mr. Rasey, who was her nephew, and intended at one time to make him a gift to take effect at the time of her death, but she was shrewd enough to not place her means beyond her control, and later she expressly withdrew the prospective gift. The money was all deposited by Mrs. Currey. Here was no gift, by way of absolute transfer, or to take immediate effect, but, at the inception of the arrangement and in its very designation of terms, was contingent upon survivorship of John Rasey. It was not irrevocable. * * * If a depositor directs a bank to pay the deposit to the depositor, or another designated, the depositor may change the designation or limit payment to himself or his order. The designation of the bank account as one subject to the order of Mrs. Currey or Mr. Rasey did not constitute a giftinter vivos, for it did not strip Mrs. Currey of all ownership of and dominion over the deposit. Rasey v.Currey's Estate, 265 Mich. 597.

"The joint interest created by the opening of such an account was always subject to the right of the person who opened the account to terminate and revoke the authority to withdraw."Cleveland Trust Co. v. Scobie, 114 Ohio St. 241 (151 N.E. 373,48 A.L.R. 182).

Under the circumstances disclosed by the record in the instant case, we are of the opinion that Mrs. Lewis had the right, so long as the deposit had not otherwise been disposed of, to revoke the intended gift. If she had the power to revoke the gift, certainly the bank upon being duly notified was fully justified in refusing payment to plaintiff.

The bank would have been confronted with a different situation if plaintiff had exercised the right which the above quoted statute affords by serving the bank with "notice in writing not to pay such deposit" to Mrs. Lewis or upon her order. Presumably such notice by force of the statutory provision would have preserved the rights of the respective parties in statu quo until such time as proceedings could have been instituted looking toward an adjudication of the rights of the parties interested. Plaintiff did not see fit to protect her rights in accordance with the statutory provision; and not having done so, she is without just ground for complaint because of the bank having made payment to Mrs. Lewis. Under the circumstances of this case, plaintiff's demand for payment subsequent to Mrs. Lewis' stop order given to the bank did not vest in plaintiff any greater right in the deposit than she possessed prior to such demand. The money belonged to Mrs. Lewis; it was paid to her by the bank; and by express statutory provision such payment constituted a "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."

Decision herein can be, and we think should be, based upon the statutory provision governing payments of accounts of this character. Appellant points out that there is conflict between the terms of the deposit agreement and the quoted statute. The conflict referred to by appellant is that the deposit agreement authorizes the bank to make payment "notwithstandingany notice," where as the statute provides for notice in writing. Appellant asserts that the statutory provision should control, citing Ackenhausen v. People's Savings Bank, 110 Mich. 175 (33 L.R.A. 408, 64 Am. St. Rep. 338). But even so, under the facts in this case decision would not thereby be changed. While the statute provides for stopping payment by notice in writing; there is no provision in the statute which prevents the bank, if it sees fit to do so, from respecting an oral notice from one of the parties not to pay the other.

Appellant asserts that she should not be bound by the terms of the depository agreement because she signed the same without reading it or being otherwise advised of its contents. But regardless of whether appellant is bound by the terms of the depository agreement, she is bound by the provisions of the statute hereinbefore quoted. She is bound to know the law.

Appellant also asserts that the trial court committed error by permitting the bank teller to testify to matters equally within the knowledge of Mrs. Lewis, who had died prior to trial of the cause.^* This contention is not tenable. The record does not show that this specific objection was made in the trial court. The teller testified: "Mrs. Lewis said that the money was to go to her granddaughter after her death." This statement was made in plaintiff's presence, if made at all; and the testimony was admissible as bearing upon the rights of the respective parties in the deposit then being made. In re Taylor's Estate,213 Mich. 497.

The judgment entered in the circuit court is affirmed, with costs to appellee.

FEAD, WIEST, BUTZEL, BUSHNELL and SHARPE, JJ., concurred with NORTH, C.J.

^* See 3 Comp. Laws 1929, § 14219. — REPORTER.