McQUADE, Justice.
Re-rehearing was granted, and the opinion on rehearing, filed December 2, 1958, is withdrawn and this opinion substituted therefor.
The plaintiff, Idaho First National Bank, as administrator of the estate of Walter Griffiths, deceased, referred to herein as the administrator, instituted this action against the defendants, First National Bank of Caldwell, Walter Griffiths, Jr., and Helen M. Griffiths, husband and wife, to recover for decedent’s estate certain funds from Walter Griffiths, Jr., and Helen M. Griffiths, and to determine ownership of certain land sale contracts executed by the deceased with various purchasers, and in addition to determine title to a promissory note.
Defendant First National Bank of Caldwell did not appeal from the judgment of the lower court, and will not be considered here on appeal. Walter Griffiths, Jr., and Helen M. Griffiths will be referred to hereafter as the defendants or appellants.
From a judgment in favor of the plaintiff administrator, defendants take this appeal.
The issues presented by this case are whether titles' to the bank account, land sale contracts and a promissory note were transferred through the medium of a joint survivorship agreement as gifts inter vivos, or whether such an agreement was executed for the purpose of business convenience or necessity.
During his lifetime Walter Griffiths was by profession an attorney at law. His clientele for a time included the defendant bank, the First National Bank of Caldwell. He accumulated a sizable estate, in excess of $150,000. He left no issue, and died intestate on December 26, 1955, at about the age of 89 years. His next of kin consisted of nieces and nephews, one of whom is defendant Walter Griffiths, Jr.
[289]*289The defendants were residing on one of Walter Griffiths’ farms when in January of 1950 Walter Griffiths, because of his failing health, went to live with his nephew and the latter’s wife, during which time he paid them $50 per month. During July, Griffiths suffered a severe illness which occasioned a surgical operation and hospitalization for approximately two months. At that time, he executed a bank signature card which authorized his nephew to draw checks on a checking account.
After the illness, Griffiths returned to his office and continued practice of his profession until September of 1954. In 1953, Griffiths made a gift of the farm on which they resided, and an automobile, to his nephew and the latter’s wife.
On November 12, 1954, Griffiths relinquished management of his business affairs to his nephew, except for the execution of certain real estate contracts. On that date, Walter Griffiths, Walter Griffiths, Jr., and Helen M. Griffiths executed the following agreement:
“Agreement Regarding Joint Account Opened “under the name of Walter Griffiths the undersigned, Joint Depositors, hereby agree, each with the other and with The First National Bank of Caldwell, Caldwell, Idaho that all sums heretofore or hereafter deposited by said joint depositors or either of them, with said bank, to their credit as such joint depositors, in the account above mentioned, shall be owned by them jointly, with the right of survivorship and be subject to the order or receipt of either of them or the survivor of them, and payments thereof, to either shall discharge said bank from liability to either, or the heirs, executors, administrators or assigns of either. This agreement shall not be changed or terminated without written notice to said bank and such notice shall not affect the deposits heretofore made. In case of the temporary closing of this account a deposit thereafter made by either party is subject to the conditions herein mentioned unless said bank is otherwise notified in writing and this agreement terminated.
“Dated Nov 12 1954 Walter Griffiths Joint
“The First National Bank of Caldwell, Caldwell, Idaho Walter Griffiths Jr. Helen M. Griffiths Depositors
“By EWE
“SYMS-York Co. 210773
“To The First National Bank of Caldwell, Caldwell, Idaho
“Below please find authorized signature(s) which you will recognize in the payment of funds or the transaction of- ether business on my (or ourj account, and it is agreed that:
[290]*290“In receiving items of deposit or collection, this bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. This bank will not be liable for default or negligence of its duly selected correspondents nor for losses in transit, and each correspondent so selected shall not be liable except for its own negligence. This bank or its correspondents may send items, directly or indirectly, to any bank including the payor, and accept its draft or credit as conditional payment in lieu of cash; it may charge back any item at any time before final payment, whether returned or not, also any item drawn on this bank not good at close of business on the day following the day deposited.
“(Sign Here) x Walter Griffiths
“(Sign Here) x Walter Griffiths Jr.
“(Sign Here) Helen M. Griffiths
“Account Opened By
“Date 11/12/54 Address Bx 93 or R No. 3, Caldwell
“If joint account is desired have both parties sign above and both parties execute agreement on back of card.
“Griffiths, Walter, Walter Jr., or Helen”.
The name of Walter Griffiths was not written in at the top of the agreement at the time of execution; and at the instance of Walter Griffiths, Jr., it was filled in by the bank manager, designating the account of the uncle to which the agreement would apply. This account, at the time of Walter Griffiths’ death, had credited to it the sum of $44,141.42. Subsequent to November 12, 1954, Griffiths did not examine the account balance nor the bank statements, but would only ask the defendant, Walter, Jr., as to the balance in the checking account. This arrangement continued until Griffiths’ death December of 1955. Immediately after his uncle’s death, Walter Griffiths, Jr., withdrew $43,000 from the checking account and deposited it to his own account.
The trial court made findings of fact and concluded that the execution of the joint survivorship agreement was for business convenience and business necessity, and that it was not the intention of Griffiths to vest any ownership in the defendants of the amount credited to the bank account.
Between October, 1953, and November 23, 1955, Griffiths executed nine contracts of sale of real estate having a total balance due thereon after execution in excess of $93,000. The contracts were placed in escrow at the bank, with instructions to credit [291]*291the payments under the contracts to his account. There was, in addition to the contracts, a promissory note executed in June, 1950, payable to Walter Griffiths, in the sum of $1,254.59, payments on which were to be deposited to Griffiths’ bank account.
Free access — add to your briefcase to read the full text and ask questions with AI
McQUADE, Justice.
Re-rehearing was granted, and the opinion on rehearing, filed December 2, 1958, is withdrawn and this opinion substituted therefor.
The plaintiff, Idaho First National Bank, as administrator of the estate of Walter Griffiths, deceased, referred to herein as the administrator, instituted this action against the defendants, First National Bank of Caldwell, Walter Griffiths, Jr., and Helen M. Griffiths, husband and wife, to recover for decedent’s estate certain funds from Walter Griffiths, Jr., and Helen M. Griffiths, and to determine ownership of certain land sale contracts executed by the deceased with various purchasers, and in addition to determine title to a promissory note.
Defendant First National Bank of Caldwell did not appeal from the judgment of the lower court, and will not be considered here on appeal. Walter Griffiths, Jr., and Helen M. Griffiths will be referred to hereafter as the defendants or appellants.
From a judgment in favor of the plaintiff administrator, defendants take this appeal.
The issues presented by this case are whether titles' to the bank account, land sale contracts and a promissory note were transferred through the medium of a joint survivorship agreement as gifts inter vivos, or whether such an agreement was executed for the purpose of business convenience or necessity.
During his lifetime Walter Griffiths was by profession an attorney at law. His clientele for a time included the defendant bank, the First National Bank of Caldwell. He accumulated a sizable estate, in excess of $150,000. He left no issue, and died intestate on December 26, 1955, at about the age of 89 years. His next of kin consisted of nieces and nephews, one of whom is defendant Walter Griffiths, Jr.
[289]*289The defendants were residing on one of Walter Griffiths’ farms when in January of 1950 Walter Griffiths, because of his failing health, went to live with his nephew and the latter’s wife, during which time he paid them $50 per month. During July, Griffiths suffered a severe illness which occasioned a surgical operation and hospitalization for approximately two months. At that time, he executed a bank signature card which authorized his nephew to draw checks on a checking account.
After the illness, Griffiths returned to his office and continued practice of his profession until September of 1954. In 1953, Griffiths made a gift of the farm on which they resided, and an automobile, to his nephew and the latter’s wife.
On November 12, 1954, Griffiths relinquished management of his business affairs to his nephew, except for the execution of certain real estate contracts. On that date, Walter Griffiths, Walter Griffiths, Jr., and Helen M. Griffiths executed the following agreement:
“Agreement Regarding Joint Account Opened “under the name of Walter Griffiths the undersigned, Joint Depositors, hereby agree, each with the other and with The First National Bank of Caldwell, Caldwell, Idaho that all sums heretofore or hereafter deposited by said joint depositors or either of them, with said bank, to their credit as such joint depositors, in the account above mentioned, shall be owned by them jointly, with the right of survivorship and be subject to the order or receipt of either of them or the survivor of them, and payments thereof, to either shall discharge said bank from liability to either, or the heirs, executors, administrators or assigns of either. This agreement shall not be changed or terminated without written notice to said bank and such notice shall not affect the deposits heretofore made. In case of the temporary closing of this account a deposit thereafter made by either party is subject to the conditions herein mentioned unless said bank is otherwise notified in writing and this agreement terminated.
“Dated Nov 12 1954 Walter Griffiths Joint
“The First National Bank of Caldwell, Caldwell, Idaho Walter Griffiths Jr. Helen M. Griffiths Depositors
“By EWE
“SYMS-York Co. 210773
“To The First National Bank of Caldwell, Caldwell, Idaho
“Below please find authorized signature(s) which you will recognize in the payment of funds or the transaction of- ether business on my (or ourj account, and it is agreed that:
[290]*290“In receiving items of deposit or collection, this bank acts only as depositor’s collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or solvent credits. This bank will not be liable for default or negligence of its duly selected correspondents nor for losses in transit, and each correspondent so selected shall not be liable except for its own negligence. This bank or its correspondents may send items, directly or indirectly, to any bank including the payor, and accept its draft or credit as conditional payment in lieu of cash; it may charge back any item at any time before final payment, whether returned or not, also any item drawn on this bank not good at close of business on the day following the day deposited.
“(Sign Here) x Walter Griffiths
“(Sign Here) x Walter Griffiths Jr.
“(Sign Here) Helen M. Griffiths
“Account Opened By
“Date 11/12/54 Address Bx 93 or R No. 3, Caldwell
“If joint account is desired have both parties sign above and both parties execute agreement on back of card.
“Griffiths, Walter, Walter Jr., or Helen”.
The name of Walter Griffiths was not written in at the top of the agreement at the time of execution; and at the instance of Walter Griffiths, Jr., it was filled in by the bank manager, designating the account of the uncle to which the agreement would apply. This account, at the time of Walter Griffiths’ death, had credited to it the sum of $44,141.42. Subsequent to November 12, 1954, Griffiths did not examine the account balance nor the bank statements, but would only ask the defendant, Walter, Jr., as to the balance in the checking account. This arrangement continued until Griffiths’ death December of 1955. Immediately after his uncle’s death, Walter Griffiths, Jr., withdrew $43,000 from the checking account and deposited it to his own account.
The trial court made findings of fact and concluded that the execution of the joint survivorship agreement was for business convenience and business necessity, and that it was not the intention of Griffiths to vest any ownership in the defendants of the amount credited to the bank account.
Between October, 1953, and November 23, 1955, Griffiths executed nine contracts of sale of real estate having a total balance due thereon after execution in excess of $93,000. The contracts were placed in escrow at the bank, with instructions to credit [291]*291the payments under the contracts to his account. There was, in addition to the contracts, a promissory note executed in June, 1950, payable to Walter Griffiths, in the sum of $1,254.59, payments on which were to be deposited to Griffiths’ bank account.
Appellants claim title to the bank account, the land sale contracts, and the promissory note, and base their assertion upon the executed joint account agreement.
Walter, Jr., checked at the bank to determine the type of card his uncle signed in 1950, and secured the joint account cards. When his uncle requested the cards, they were on hand at the home for execution. Appellants also emphasize the fact that the uncle had executed one card for convenience, and therefore intended something more by the new agreement.
Two witnesses testifying for appellants were contradictory in their testimony, one of them stating he understood Walter Griffiths to say that the contracts were fixed at the bank, and his nephew would receive them, whereas the other witness testified Walter Griffiths was disposing of his property by a will. The defendant Walter Griffiths, Jr., testified his uncle had developed love and affection for him, and at the time the joint account agreement was executed his uncle said, “Everything is all yours now, Walter.”
The administrator introduced evidence to show that the deceased intended the agreement to be for business convenience and necessity. This evidence may be summarized as follows: (a.) there was a close and confidential relationship between defendants and the deceased; (b.) Walter Griffiths, Jr., acted in his uncle’s stead for all business matters after November 12, 1954, the date the joint account agreement was executed; (c.) the agreement pertained to the joint checking account, and was not related to the land sale contracts held in escrow nor to the promissory note; (d.) at the time the joint agreement was executed, decedent was aged, physically infirm, with his hearing impaired, and required the use of a strong magnifying glass for reading; (e.) in the summer of 1955, the defendant nephew summoned Frank Meek, an attorney for his uncle, advising the attorney his uncle wished to make a gift of the entire estate to said defendant; when defendant Walter, Jr., requested his uncle in the presence of Frank Meek to turn all the property over to him, the uncle refused to discuss the matter; (f.) on November 22, 1955, Walter Griffiths, Jr., withdrew $2,000 from his uncle’s checking account, and on the face of the check inscribed the word “loan.”
The trial court, upon the facts, concluded that the agreement was executed for business necessity and convenience, and did not constitute a gift; that no valid transfer .of the land sale contracts and the promissory note had been made to the defendants.
[292]*292Judgment was entered in favor of the plaintiff and against the defendants in the sum of $43,000 plus interest, and defendant bank was ordered to deliver the balance of the money in the account to the administrator; the defendant bank was also ordered to deliver the proceeds from the escrow real estate contracts and the promissory note to the administrator.
Appellants assign 19 assignments of error, relating almost exclusively to the findings of fact, conclusions of law, and decree. There is no necessity to treat them separately, as the assignments all go to the fundamental proposition that the trial court erred as to the findings and the decree based thereon.
Idaho Code sec. 26-1014 relating to joint survivorship agreements pertaining to bank deposits reads as follows:
“When a deposit has been made, or shall hereafter be made, in any bank, in the names of two or more persons, payable to any of such persons or payable to the survivor, or survivors, such deposit, or any part thereof, or interest or dividend thereon, if not then attached at law or in equity in a suit against any of said persons, may be paid to any of said persons, whether the other be living or not, and such payment shall discharge the bank making the same from its obligation, if any to either or any of such other persons or their legal representatives for or on account of such deposit. This section shall apply to husband and wife to all intents and purposes the same as to other persons.”
The defendants rely upon the agreement for a transfer of titles to the promissory note and the land sale contracts, upon the legal theory that a gift inter vivos had been made at the time the joint account agreement was executed. All proceeds from the contracts and the note were, by escrow agreement or otherwise, to be deposited in the deceased’s checking account. Because of this relationship between the checking account and the escrow contracts, the defendants thereby assert a legal conclusion that the lawyer uncle intended to make a gift of the land salé contracts and promissory note. We shall deal summarily with this proposition.
The joint account agreement and its legal effect have been a subject of controversial discussion by almost all of the courts in the United States. Many fictions have grown up as to the legal bases and legal effects of such agreements upon checking accounts, savings and loan accounts, and safe deposit boxes.
Defendants, by virtue of their asserting title to the checking account on the basis that a gift was made, assert a gift of all property the proceeds of which were paid to the checking account. This is a new theory with which we are not familiar, insofar as transfer by joint account agreements [293]*293prevails. No decision has been brought to our attention on the contract theory, trust theory, legal effect theory, or gift theory, which considers property other than that to which the instrument has direct reference. Defendants have failed to prove any of the essentials necessary to effect a gift inter vivos of the land sale contracts and the promissory note. Because there is no direct proof of a gift inter vivos, their assertion of title is without foundation, and fails. The contracts and the promissory note are property of, and properly distributable by, the estate.
We next proceed to the joint account agreement and the effect which it has, under the evidence, on the checking account, which was in the sum of $44,141.42 at the time the uncle expired.
In Gray v. Gray, 78 Idaho 439, 304 P.2d 650, where a deceased father had deposited his sole and separate funds under a joint account agreement with his daughter, and no evidence was introduced to prove an adverse intent, this Court held that the agreement effected a gift and created a joint tenancy.
Idaho has joined that group of states which hold that such an agreement may effect a gift. 48 A.L.R. 189, 66 A.L.R. 881, 135 A.L.R. 993, 149 A.L.R. 879.
In determining the effect of a joint bank account agreement, the determinative consideration is the intent of the depositor, and this is a question for the trier of facts. Shurrum v. Watts, 80 Idaho 44, 324 P.2d 380. Recently this Court held, in Shurrum v. Watts, supra, that during the lifetime of the parties the presumption of joint tenancy and right of survivorship is rebuttable. After the death of the sole depositor, the establishment of his intent is a more difficult problem, such as in the case at hand.
The statute which authorizes joint account agreements, I.C. sec. 26-1014, is intended primarily for the protection of banks. It is said in New Hampshire Sav. Bank v. McMullen, 88 N.H. 123, 185 A. 158, 161, the purpose of the statute
“ * * * js -j-Q protect savings banks and not to determine the rights of depositors and those claiming under them. Dover Cooperative Bank v. Tobin’s Estate, supra, 86 N.H. 209, at page 211, 166 A. 247.”
See also Rice v. Bennington County Sav. Bank, 93 Vt. 493, 108 A. 708, 711, wherein that Court said:
“ * * * Whatever the purpose or scope of this statute [G.L. 5376], neither its provisions, nor any practice that we are aware of relating to the transfer of bank deposits, have relieved a party claiming a deposit by gift from proving the facts necessary to constitute a gift.
* * * =K
“The provisions of G.L. 5376 are for the protection of the bank paying [294]*294money to persons named in deposits made in the manner specified in the statute, and do not change or affect the title to such deposit.”
The Iowa case of Sinift v. Sinift, 229 Iowa 56, 293 N.W. 841, 853, states:
“ * * * The legal relationships created by the establishment of joint bank deposits have long perplexed the banks, the depositors and the courts. The banks, in particular were in a continuous quandary, since until the rights of depositors were determined they could not be certain to whom the account might be safely paid. To remedy the situation many of the states passed statutes substantially identical in import with Section 9267 [I.C.A. § 528.-64], [This statute closely parallels our I.C. sec. 26-1014.] * * * such legislation was enacted for the protection of banks with respect to the payment of the funds, and does not affect their title to the deposit, or determine the legal rights of the parties thereto as between themselves * * *.
“ * * * Appellant refers to the certificates of deposit as three party contracts. This is true with respect to the right to make and to receive payment, but it is not true with respect to fixing or determining ownership, in fact, of the funds deposited, as between the joint payees. * * * ”
This Court has limited the effect of the Gray case in the Shurrum case by allowing living parties to testify as to the intent of the depositor in creating the joint account. Strict enforcement of these agreements without regard to intent of the parties making them would present serious conflicts with our statutes relating to the laws of intestate succession, community property, testate distribution, and limitation on charitable bequests.
The case of Gordon v. Toler, Ch.Ct., 83 N.J.Eq. 25, 89 A. 1020, 1021, contains the following:
“ * * * The question is whether this section was intended to do anything more than protect savings banks. It certainly was not designed to make that a gift which, according to the evidence, was not a gift, present or future, but only a convenient way of drawing money, and it ought not to be construed as an implied repealer pro tanto of the Wills Act [N.J.S.A. 3A:3-1 et seq.] if the two statutes may stand together. It is manifest that they may. The survivor may hold in trust for the estate of the deceased depositor, and the bank, taking the receipt of the surviving depositor, may be discharged from liability for what it pays out. It is not to be presumed that the Legislature, under an act entitled 'An act concerning savings banks,’ intended, if it could constitutionally intend, to repeal the Wills [295]*295Act in part, and thus to dispense with those safeguards which have so long been deemed essential to protect the estate of a decedent. * *
This case is cited in Mathias v. Fowler, 124 Md. 655, 93 A. 298, and in Reeves v. Reeves, 102 N.J.Eq. 436, 141 A. 175.
Where competent evidence, and all of the reasonable inferences to be drawn therefrom, establish an intent of a depositor, since deceased, contrary to that indicated in the creation of a joint account, the assertion of joint tenancy will not be sustained. The evidence presented herein is sufficient to overcome the presumptive effect of the agreement, and amply sustains the findings of fact, conclusions of law, and judgment of the trial court. Defendants have failed otherwise to establish the necessary elements of a gift.
Where there is sufficient, substantial, and competent, though conflicting, evidence to support the findings of the trial court, and the findings are not clearly against the weight of the evidence, they will not be disturbed on appeal. Howay v. Howay, 74 Idaho 492, 264 P.2d 691; Jensen Motor Sales v. Chandler, 77 Idaho 303, 291 P.2d 1116; Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946; Ryan v. Day, 74 Idaho 159, 258 P.2d 1146; In re Davenports’ Estates, 79 Idaho 548, 323 P.2d 611; Manley v. MacFarland, 80 Idaho 312, 327 P.2d 758; Larson v. Lindsay, 80 Idaho 242, 327 P.2d 775.
Where money in a joint account is deposited by one party, and thereafter a question of the depositor’s intent arises, the party asserting the gift must prove all the elements of a gift, excepting irrevocable delivery, by clear and convincing evidence. The question of intent of decedent having been raised, defendants were required to assume the burden of proof and to establish by clear and convincing evidence such elements of a gift. Claunch v. Whyte, 73 Idaho 243, 249 P.2d 915; In re Estate of Randall, 64 Idaho 629, 132 P.2d 763, 135 P.2d 299; McNabb v. Brewster, 75 Idaho 313, 272 P.2d 298.
The judgment is affirmed.
Costs to respondent.
TAYLOR and SMITH, JJ., concur.
PORTER, C. J., and KNUDSON, J., not participating.