Crowley v. Savings Union Bank

Plaintiff, the surviving widow of Timothy J. Crowley, deceased, commenced this action to recover the balance of a bank account alleged to have been deposited with defendant bank by Mr. and Mrs. Crowley in the name of T.

“(3) That said defendant accepted said deposit and ratified and agreed to the agreement and understanding aforesaid in relation thereto.

“(4) That on the 21st day of January, 1913, and while said deposit was owned as aforesaid, and was on deposit with said defendant under said agreement and understanding, said Timothy Jay Crowley died and plaintiff survived him.

“(5) That upon the death of said Timothy Jay Crowley as aforesaid, plaintiff Katherine S. Crowley became, ever since has been, and now is the sole owner of said deposit and entitled to receive from said defendant in its individual capacity said sum of fourteen thousand thirty-four ($14,034.92) dollars and ninety-two cents.”

The cause was tried by the court without a jury. The court made the following findings:

“ (1) That each and all of the allegations of plaintiff's amended complaint in the above-entitled action are true.

“ (3) That since the commencement of the above-entitled action, to wit, on the 30th day of June, 1913, a dividend amounting to two hundred eighty and 70/100 ($280.70) dollars accrued and became due upon said deposit.”

It appears that after the account was opened the Savings Union changed its name to Savings Union Bank and Trust Company, the corporation otherwise remaining unchanged.

The account bearing the number 131,260 was opened on the fifth day of January, 1909, by a deposit of seven thousand dollars under the following agreement:

“San Francisco, Cal., Jany. 5, 1909. “To the San Francisco Savings Union:

“All moneys now on deposit, or at any time hereafter deposited by or for us or either of us, to the credit of Timothy J. Crowley or Katherine, wife, ordy. deposit account No. 131,260, with the dividends thereon and accumulations thereof, are, and shall be, the joint property (with right of survivor-ship) of the undersigned, and are payable to us or either of us, or to the survivor of us, or to the executors, administrators or assigns of such survivor, without reference to the original ownership of such moneys; the act of so depositing said moneys, being absolute termination of any original ownership thereof; and are subject to all national and state laws governing such moneys, now or hereafter in force.

“This account may be terminated at any time by the board of directors of said San Francisco Savings Union; and the opening of this account is sufficient and complete evidence of

“ (Signed) T. J. Crowley,

“Katherine Crowley,

“O. D. No. 131,260.

Joint agreement.

“Signed.

$7000.00

“Tour names in full: Timothy J. Crowley, or Katherine, wife.

“We admit full knowledge of the ‘ Conditions of Agreement’ on which deposits may be made with, and will be repaid by the San Francisco Savings Union, as per copy of said ‘ Conditions’ in our pass book, and we hereby accept same and agree to be bound thereby in the relation of depositors with said San Francisco Savings Union.

“Witness our hands and seals this Jan. 5, 1909.

“(Signed) T. J. Crowley,

“Katherine Crowley.

“Address: 1403 Willard St.

“Mother’s maiden name: Margaret Sheehan.”

One of appellant’s contentions is that the evidence shows that Mrs. Crowley was not present when this document (plaintiff’s exhibit No. 4) was signed by her husband, and that it was not signed by her at that time. Such was the testimony of one of the witnesses, assistant cashier Whittle, who was deposit teller of defendant bank. He further testified: “Q. Now, at that time that $7,000.00 was deposited in that bank, was there anything said by Mr. Crowley to you as to the character of the account 1 A. Well, he wished the account in the name of himself and wife.”

Mrs. Crowley testified: “To Mr. Schlesinger: I live at 1403 Willard Street. I am the widow of Timothy Jay Crowley, deceased, and was his wife during the last fourteen years of his life. He died on January 21, 1913. The name Katherine Crowley appearing on plaintiff’s exhibit No. 4 for identification, is my signature. I first signed that paper in the San Francisco Savings Union in 1909. I think it was, on the date appearing on the document. My husband was with me when I signed it. I read the paper over before I signed it. I understood it. My husband read the paper over to me. After he read the paper to me and after I signed it, he handed it

Mr. Whittle testified: “Upon the death of Mr. Crowley, this paper (plaintiff’s exhibit 4) was amongst the official documents in our bank, and was kept in the usual place and in' its present condition, with the exception of the filing marks on the reverse side. The number appearing on that contract is 131260, which is the same number appearing on the passbook. ’ ’

As to the fact of Mrs. Crowley’s presence, and the signing of the agreement by her at the bank, the court accepted Mrs. Crowley’s testimony and we find nothing in the record to warrant us in holding that the court was not justified in its action.

It is further contended by appellant that this account, No. 131,260, was closed on April 1, 1909, and the entire balance transferred to ordinary deposit account No. 131,975. Witness Whittle testified: “On the 1st day of April, 1909, the $7,000.00 previously deposited at the time this account was opened was transferred to another account, numbered 131975. I cannot now recall, without referring to our records, what account that was, but in any event this account was closed. ’ ’ The words “this account was closed” were, on motion of plaintiff, stricken out and the ruling is assigned as error. We pause to say that we think the ruling was not error. In the sense defendant sought to apply the words they were but the

It appeared that, on April 1, 1909, this seven thousand dollar deposit was withdrawn and deposited to an account opened in the name of San Francisco National Bank, trustee, for T. J. and Katherine Crowley, to enable this bank to issue letters of credit to the Crowleys, who intended to visit Europe. The account No. 131,260, however, was not closed, for, on April 20, 1909, a deposit was made to that account and, on the return of the Crowleys, in September, 1909, many deposits, some of them large ones, were made to this account, as shown by the ledger account and pass-books in which all the transactions, from the initial deposit of seven thousand dollars to the death of Mr. Crowley, were entered.

Witness D. L. Clarke, assistant secretary of defendant bank, testified: “Referring to ordinary deposit book No. 131260, which was marked for identification plaintiff’s exhibit No. 2, I do not wish to be understood as saying that the account was closed. The book was closed and a new one issued of this same account, issued under the same number and same ledger. That particular pass-book was called in, as it appears, on October 12, 1912. It was not pursuant to any resolution of the board of directors, but it was customary, in connection with the changing of the name of the bank, for us to take in the old pass-books when they came in, whenever customers were willing to sign them, and issue a new book in the name of the bank.”

The withdrawal of the initial deposit was explained, and nothing in connection with the withdrawal indicated an intention to close the account. On the contrary, deposits began to be made shortly after to this same account, and continued for a period of four years and until Mr. Crowley’s death. It was an open and active account, deposits being made during the Crowleys’ absence through instructions given before their departure for Europe and continued after their return, as we have said, until Mr. Crowley’s death.

Mrs. Crowley testified: “I have seen before these two bankbooks numbered 131260, marked plaintiff’s exhibits 2 and 3. I always had them in my possession. On some occasions I withdrew money from this bank account, and on other occasions my husband drew money from it. On the occasion when I would withdraw money from this particular account, I had

Mr. Whittle testified: “Some of the time when Mr. Crowley came in and withdrew or deposited money, Mrs. Crowley accompanied him, and she came in by herself and dealt with the bank.” Mr. Clarke testified: “I know that withdrawals were made by both Mr. and Mrs. Crowley, that is separate withdrawals. Mr. Crowley withdrew some of these moneys on some occasions, and Mrs. Crowley withdrew. These withdrawals occurred after the opening of the account.”

The contention that the account was closed on April 1, 1909, and that subsequent deposits and withdrawals were not made under the original agreement is not supported by the evidence. On the contrary, the evidence showed that the account as represented by the two pass-books, exhibits 2 and 3, both numbered 131,260, was an open, running account to which deposits were frequently made, and from which withdrawals were also frequently made both by Mr. and Mrs. Crowley, sometimes when both were present, and at other times by them separately, from January 5, 1909, to December 24, 1912. Pass-book No. 2 was called in and pass-book No. 3 issued when the bank changed its name, but the account remained throughout under the original number, 131,260.

The agreement under which all these transactions occurred unmistakably constituted a joint tenancy as to the fund with right of survivorship, and that at the death of either the ownership of the balance, whatever it might be, remaining on deposit passed “to the survivor. The right of plaintiff to the balance for which she brought the action arises from the well-understood incident of a joint tenancy — that, upon the death of one of two joint tenants, the survivor thereupon becomes the sole owner of the entirety, not by descent, but by survivorship, and in virtue of the original event creating the tenancy. The principles governing this case are so well settled that discussion of them would be supererogatory. Let it suffice to refer to Carr v. Carr, 15 Cal. App. 480 , [ 115 Pac. 261 ]; Drinkhouse v. German Savings & Loan Society, 17 Cal.

There remains only to be considered alleged errors of the court in excluding certain evidence offered by defendant.

Defendant offered in evidence the will of Timothy J. Crowley, bearing date March 23, 1909, in which the testator declared: “All the property possessed by me is separate property and not community property.” Two codicils were attached to this will. “Codicil No. 1” bears no date. “Codicil No. 2” is dated “San Francisco, November-, 1912.” In codicil No. 1 Crowley directed: “In case of my death prior to the death of my said wife all moneys, stocks, bonds or other securities now in our possession to be drawn by me or her shall be turned over to my executors and trustees as the same constitute a part of my estate.” In codicil No. 2 he makes no reference to the character of his property, and there was no evidence tending to show when codicil No. 1 was executed. Codicil No. 2 was made shortly before the last will of Crowley, which was offered in evidence and is dated December 3, 1912, and revoked all prior wills. In this will he made a declaration similar to that found in the will of 1909; also, “that all moneys, bank accounts, stocks, bonds and other securities now in the joint name or joint custody of myself and wife, constitute a part of my said separate estate and are to be administered upon by my said executor pursuant to the terms of this will.” In his last will he devised the residence property to his wife and one-half of all other property for her life. These wills were admitted subject to a motion to strike out, subsequently made and granted, on the ground that they were incompetent, irrelevant, and immaterial, and on the further ground that the instruments were self-serving declarations, and hearsay, and not binding in any way upon this plaintiff, and are not competent to change the contract.

Mrs. Crowley testified that she never knew that her husband had made a will until after his death, and was never consulted as to any provisions in any will, and had no knowledge that he had made a will until after he died.

Appellant, in support of its contention that the ruling was error, cites the following California cases: Ruiz v. Dow, 113

In Ruiz v. Dow the declarations were against interest and not in disparagement of title. So also in Sprague v. Walton. In the Estate of Hall the declarations were made at the time the husband executed the deed to his wife, and showed an intention to retain absolute ownership during his lifetime, and have title pass only upon his death. The rule of res gestae applied. Fanning v. Green was not a case involving declarations, but concerned the admissibility of testimony of the grantor as to his intention in making the deed. The court held that a witness may be examined as to the intent with which he did a certain act where that intent is a material thing in the action. In Fulkerson v. Stiles the question was the same. So also in Runo v. Williams. In Cooney v. Glynn the evidence showed that the" will which was held admissible was intimately connected with the deed made two or three days later. The court said: “Under the circumstances appearing here, the fact of the execution of the will by Mr. Gallagher, the devise of this property to Mrs. Cooney, its subsequent destruction at the instance of the defendant and the execution of the deed in lieu thereof in trust for Mrs. Cooney, would be material and competent evidence to establish the constructive trust alleged. The evidence should have been admitted.”

Williams v. Kidd is particularly relied upon by appellant. The vital question in that case was: Did the grantor of the land, when he placed a deed in the hands of a third party to be delivered at the death of the grantor, intend that the title to the property should pass presently to the grantee? The court held that “the solution of this case is grounded entirely on the intention of the grantor and this essential matter of intention is a question of fact to be determined by the trial court from a consideration of all the evidence in a given case bearing upon the question”; that “acts and dec.

It seems to us that the parties interested in the fund now involved, dealt with it under an agreement so clear and unmistakable in its meaning and intent as to leave no room for doubt concerning their object originally in opening the account, and in their treatment of it from January 5, 1909, when it was opened, until January 17, 1913, when the last entry in the pass-book appears, four days before Mr. Crowley’s death. He and his wife had been depositing and drawing out money from this account, amounting to many thousands of dollars, under an agreement declaring all moneys deposited to be “the joint property with right of survivorship of the undersigned, and payable to us or either of us, or to the survivor of us, ” and further declaring that “this right was without reference to the original ownership of such moneys; the act of so depositing said moneys, being absolute termination of any original ownership thereof.” Under such circumstances, upon what principle can we say that a declaration of the husband in his will, made without her knowledge or consent, that all his property is separate property is admissible in disparagement of the interest of his surviving wife? To do so would be to hold that declarations purely self-serving, and in direct contradiction to the terms of the written instrument of the two spouses, are admissible. Here was a transaction commenced under a written declaration of the parties thereto whereby

The declarations made in the will of Timothy Crowley were inadmissible as evidence of an intention other than that expressed in this executed agreement. (Rowe v. Hibernia Savings & Loan Society, 134 Cal. 406 , [ 66 Pac. 569 ]; Eaton v. Locey, 22 Cal. App. 769 , [ 136 Pac. 534 ]; Batcheller v. Whittier, 12 Cal. App. 262 , [ 107 Pac. 141 ]; Bulofson v. Billings, 140 Cal. 452 , [ 74 Pac. 35 ].) It is true that the first will was made two or three months after the first deposit was made, but its provisions were unknown to plaintiff and, so far as appears, to their trustee. The testator continued, as did plaintiff, to recognize the account with the bank as controlled by their written agreement by an unbroken series of acts inconsistent with the declarations in the will, and it was not until he made the will on December 3, 1912, a little over a month before his death, that he made any declarations as to moneys in bank, in the joint name of himself and wife, being a part of his separate estate. Codicil No. 1 to the first will bore no date, and we must presume that it was executed after the will was made, but, so far as we know, it may have been made long after, and it is fair to presume that it was made while both he and his wife were treating the account as described in their written agreement.

It was held, in Rulofson v. Billings, 140 Cal. 452 , [ 74 Pac. 35 ], that self-serving declarations by a decedent, made outside of the presence of the person affected thereby, are inadmissible. Speaking of the rule of res gestae, it was held that self-serving declarations, made long subsequent to the contract sought to be enforced, are not admissible as being part of the res gestae. “A declaration to be admissible as part of the res gestae, must be an incident, or the natural and spontaneous outgrowth of the main occurrence in question, and must exclude the notion of deliberation,. or calculation, or design to make evidence for future purposes.” (Syllabus.)

Appellant claims that the deposit account “did not div-est Crowley of his ownership of the funds, or make Katherine Crowley a joint tenant as to such funds. ’ ’ In support of his

We have been cited to no case and have been cited to no principle which convinces us that the learned trial court was in error in its conclusions of law or in its judgment.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.