Careful consideration of the record on this appeal seems to me to force the conclusion that appellant has a right of survivorship in the joint bank account. For that reason I am unable to concur
in Mr. Justice CHANDLER'S opinion for complete affirmance.
Chronologically the pertinent facts leading to the joint bank account are as follows: Funds which Anna Maahs received from the estate of her deceased husband were placed in a joint bank account in the names of Anna and her son Walter with right of survivorship on February 1, 1941. At the behest of Anna, and seemingly because of some trouble she had with Walter concerning property matters, this joint account was closed and the funds transferred in the same bank to her individual name on September 3, 1941. For practically eight months the deposit continued in Anna's individual name, and then on May 1, 1942, it was transferred to the joint names of Anna and her son Otto with right of survivorship. It so remained until Anna's death.
There is no showing of fraud or undue influence incident to the change on May 1, 1942, of Anna's personal bank account to the joint account with right of survivorship in the names of Anna and her son Otto. While there may have existed the opportunity for exercising undue influence, a showing of such opportunity is not sufficient; and we have so held many times. In re Grow'sEstate, 299 Mich. 133; In re Rowling's Estate, 291 Mich. 218, and cases cited.
The controlling aspect of the instant record is the total absence of any testimony incident to the creation of the joint account with Otto which in any way tends to overcome the statutory presumption of Otto's right of survivorship in the joint account. See 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1942 Cum. Supp. § 23.303).
The testimony quoted in my Brother's opinion as to a change in the bank account relates to the transfer of the bank deposit from the joint names of
Walter and his mother to the account in the individual name of the mother. This testimony in no way refers to or discloses any intent as to the right of survivorship on the part of the mother at the time the account was changed from her individual name to a joint account with right of survivorship in herself and her son Otto. This latter change in the account occurred approximately eight months after the transaction to which the testimony quoted by my Brother relates. Testimony of that character in no way tends to negative the presumption provided in the statute which reads:
"The making of the deposit in such form (joint account with the right of survivorship) shall, in the absence of fraud or undue influence, be prima facie evidence, * * * of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors." 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1942 Cum. Supp. § 23.303).
I am unable to agree with several inferences which Mr. Justice CHANDLER draws from the record. There is direct and satisfactory testimony that when Anna Maahs was critically ill at Norvell and while dependent for care on her son Walter and his wife, Anna was neglected and unhappy. Testimony to that effect was given by Mrs. Sterling who at Otto's request took care of Mrs. Maahs during a brief period just prior to her going to Otto's home. This witness was disinterested and unrelated to any of the parties concerned in this litigation. She testified that three or four days before Mrs. Maahs was taken to Otto's home, she said: "She wanted me to call Otto; she wanted to go live with him." Her wish was granted by Otto, who took her to his home in Jackson, and undisputed testimony shows that the home, the maintenance
and care she there received during the remaining months of her life were the best that Otto's circumstances could afford. Dr. Wells, who was Anna Maahs' attending physician, testified of her strong desire to go to her son Otto, and of the fine care she received while living in his home.
My Brother speaks about fraud and undue influence. Except my Brother infers it from his construction of the testimony, there is no evidence of fraud; and in plaintiff's own brief it is stated: "the record is silent about the question of undue influence." My Brother says Otto "transacted her business" after his mother went to his home; but aside from caring for his mother, what "business" was transacted for her? All that is disclosed by the record is that she instituted a suit against Walter to set aside a deed to her Norvell home on the alleged ground of fraud, and two withdrawals from her bank account — $10.67, December 15, 1941, and $135.32, March 12, 1942. During this period the account was in the individual name of Anna Maahs, and obviously the withdrawals must have been on her personal order. If the above constitutes "transacting business" in the sense that a "confidential relation" arises, then every child who cares for a parent in the last days or months of a parent's life must, because of such "confidential relation," assume the burden of sustaining, whenever attacked by another, the validity of any transaction through which the child receives property from the parent. Such is not the law in this jurisdiction. Instead, it is presumed that a child may care for a parent and still be honest in dealing with the parent. On the factual background of this case, it should not be held that the burden of proof was on the defendant Otto, instead of on Walter who instituted the suit. That the record does not contain testimony covering all
the circumstances attending acts between Otto and his mother is obviously a necessary result arising from Otto's inability to testify to matters equally within the knowledge of the deceased, this being prohibited by statute. 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914)
It is said in my Brother's opinion that according to the record Anna could not write; but no one questions the fact that she could and did sign her own name; and the genuineness of her signature by which her individual bank account was transferred to a joint account between herself and Otto is not challenged. It is stressed that Anna Maahs died approximately two weeks after she thus changed the bank account; and the inference is drawn that therefore she was enfeebled and incompetent, or at least subject to undue influence. But there is absolutely no testimony that on May 1, 1942, when the account was transferred, Anna Maahs was not perfectly competent to transact business of this character or that she could not sign her name. A gift or other transaction is not presumed to be invalid merely because the party acting was then ill in bed and died a fortnight later. Testimony on this phase of the case was given by defendant's wife and it was to the effect that Anna Maahs was critically ill and in bed about three weeks before her death, not that she was mentally incompetent. It may well be inferred that defendant's mother's fear that her demise was approaching was the very reason she made the change in this bank account, or possibly the reason was the regrettable fact that her son Walter persistently refused to go to see his mother during all the months she resided with Otto. In this connection the uncontradicted testimony of defendant's wife is:
"Well, because she went on to tell me that she wanted him to have the money jointly and then she
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Careful consideration of the record on this appeal seems to me to force the conclusion that appellant has a right of survivorship in the joint bank account. For that reason I am unable to concur
in Mr. Justice CHANDLER'S opinion for complete affirmance.
Chronologically the pertinent facts leading to the joint bank account are as follows: Funds which Anna Maahs received from the estate of her deceased husband were placed in a joint bank account in the names of Anna and her son Walter with right of survivorship on February 1, 1941. At the behest of Anna, and seemingly because of some trouble she had with Walter concerning property matters, this joint account was closed and the funds transferred in the same bank to her individual name on September 3, 1941. For practically eight months the deposit continued in Anna's individual name, and then on May 1, 1942, it was transferred to the joint names of Anna and her son Otto with right of survivorship. It so remained until Anna's death.
There is no showing of fraud or undue influence incident to the change on May 1, 1942, of Anna's personal bank account to the joint account with right of survivorship in the names of Anna and her son Otto. While there may have existed the opportunity for exercising undue influence, a showing of such opportunity is not sufficient; and we have so held many times. In re Grow'sEstate, 299 Mich. 133; In re Rowling's Estate, 291 Mich. 218, and cases cited.
The controlling aspect of the instant record is the total absence of any testimony incident to the creation of the joint account with Otto which in any way tends to overcome the statutory presumption of Otto's right of survivorship in the joint account. See 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1942 Cum. Supp. § 23.303).
The testimony quoted in my Brother's opinion as to a change in the bank account relates to the transfer of the bank deposit from the joint names of
Walter and his mother to the account in the individual name of the mother. This testimony in no way refers to or discloses any intent as to the right of survivorship on the part of the mother at the time the account was changed from her individual name to a joint account with right of survivorship in herself and her son Otto. This latter change in the account occurred approximately eight months after the transaction to which the testimony quoted by my Brother relates. Testimony of that character in no way tends to negative the presumption provided in the statute which reads:
"The making of the deposit in such form (joint account with the right of survivorship) shall, in the absence of fraud or undue influence, be prima facie evidence, * * * of the intention of such depositors to vest title to such deposit and the additions thereto in such survivor or survivors." 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1942 Cum. Supp. § 23.303).
I am unable to agree with several inferences which Mr. Justice CHANDLER draws from the record. There is direct and satisfactory testimony that when Anna Maahs was critically ill at Norvell and while dependent for care on her son Walter and his wife, Anna was neglected and unhappy. Testimony to that effect was given by Mrs. Sterling who at Otto's request took care of Mrs. Maahs during a brief period just prior to her going to Otto's home. This witness was disinterested and unrelated to any of the parties concerned in this litigation. She testified that three or four days before Mrs. Maahs was taken to Otto's home, she said: "She wanted me to call Otto; she wanted to go live with him." Her wish was granted by Otto, who took her to his home in Jackson, and undisputed testimony shows that the home, the maintenance
and care she there received during the remaining months of her life were the best that Otto's circumstances could afford. Dr. Wells, who was Anna Maahs' attending physician, testified of her strong desire to go to her son Otto, and of the fine care she received while living in his home.
My Brother speaks about fraud and undue influence. Except my Brother infers it from his construction of the testimony, there is no evidence of fraud; and in plaintiff's own brief it is stated: "the record is silent about the question of undue influence." My Brother says Otto "transacted her business" after his mother went to his home; but aside from caring for his mother, what "business" was transacted for her? All that is disclosed by the record is that she instituted a suit against Walter to set aside a deed to her Norvell home on the alleged ground of fraud, and two withdrawals from her bank account — $10.67, December 15, 1941, and $135.32, March 12, 1942. During this period the account was in the individual name of Anna Maahs, and obviously the withdrawals must have been on her personal order. If the above constitutes "transacting business" in the sense that a "confidential relation" arises, then every child who cares for a parent in the last days or months of a parent's life must, because of such "confidential relation," assume the burden of sustaining, whenever attacked by another, the validity of any transaction through which the child receives property from the parent. Such is not the law in this jurisdiction. Instead, it is presumed that a child may care for a parent and still be honest in dealing with the parent. On the factual background of this case, it should not be held that the burden of proof was on the defendant Otto, instead of on Walter who instituted the suit. That the record does not contain testimony covering all
the circumstances attending acts between Otto and his mother is obviously a necessary result arising from Otto's inability to testify to matters equally within the knowledge of the deceased, this being prohibited by statute. 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914)
It is said in my Brother's opinion that according to the record Anna could not write; but no one questions the fact that she could and did sign her own name; and the genuineness of her signature by which her individual bank account was transferred to a joint account between herself and Otto is not challenged. It is stressed that Anna Maahs died approximately two weeks after she thus changed the bank account; and the inference is drawn that therefore she was enfeebled and incompetent, or at least subject to undue influence. But there is absolutely no testimony that on May 1, 1942, when the account was transferred, Anna Maahs was not perfectly competent to transact business of this character or that she could not sign her name. A gift or other transaction is not presumed to be invalid merely because the party acting was then ill in bed and died a fortnight later. Testimony on this phase of the case was given by defendant's wife and it was to the effect that Anna Maahs was critically ill and in bed about three weeks before her death, not that she was mentally incompetent. It may well be inferred that defendant's mother's fear that her demise was approaching was the very reason she made the change in this bank account, or possibly the reason was the regrettable fact that her son Walter persistently refused to go to see his mother during all the months she resided with Otto. In this connection the uncontradicted testimony of defendant's wife is:
"Well, because she went on to tell me that she wanted him to have the money jointly and then she
wanted, when she was through with it, she wanted him to go and have her funeral expenses and see that her other bills were paid; then described the marker he (she) wanted in the cemetery and then he could have all the rest for his own to do whatever he liked."
Under very limited and none-too-conclusive proof, the trial court found that the purported signatures of Anna Maahs evidencing payment of Otto's note were not her signatures, and in consequence thereof it was held the note had not been paid. Without any other testimony on this issue, comparison of the challenged signatures with genuine signatures of Anna Maahs brings the conclusion that we would not be justified in reversing the holding of the trial judge. Seemingly, it is largely, if not wholly, because of this disassociated circumstance that Mr. Justice CHANDLER concludes that Otto's interest in the joint bank account should be nullified. I am not in accord with that conclusion. The instant case is unlike Van't Hof v. Jemison,291 Mich. 385, which my Brother cites as authority. There the record disclosed that the joint accounts were created merely for business convenience, and that Jemison, who claimed the funds as survivor, had no kinship to Mrs. Meyers whose money constituted the deposits. Instead he was merely a neighbor or friend, and also Mrs. Meyers, who later lived in the home of Mr. and Mrs. Jemison, paid an agreed price for her keep in the Jemison home. The situation in the instant case is very different and the controversy should be governed by Lau v. Lau, 304 Mich. 218, where we said:
"Reasonably clear and persuasive proof, stronger than appears in this record, is required to overcome the statutory provision that deposits of the character here involved `become the property of' the survivor of the joint depositors. Otherwise there
would be no security or certainty as to the rights of such surviving depositors."
And the following, stated by Mr. Justice WIEST in Meigs v.Thayer, 289 Mich. 680, is very pertinent to the instant case:
"There having been no fraud or undue influence, we must let stand what she let stand to the time of her death."
The provisions of the decree entered in the circuit court denying appellant the right of survivorship in the joint bank account is reversed; but the provision in the decree holding appellant liable for the unpaid balance of his promissory note is affirmed. Costs of this Court to appellant.
WIEST, BUTZEL, and BUSHNELL, JJ., concurred with NORTH, J. BOYLES, C.J., concurred in the result.