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Johnson v. Mueller





Appeal by petitioners from the Circuit Court of St. Clair county; the Hon. EDWARD F. BAREIS, Judge, presiding. Heard in this court for the first district at the October term, 1951. The decree of the circuit court is affirmed. Opinion filed March 4, 1952. Released for publication April 4, 1952.


Involved in this suit are certificates of deposit for the aggregate sum of $18,000 issued by banks and made out to Jordan Johnson and/or Katie Miller, and payable to the order of either or the survivor; also $5,000 in certificates of deposit in the same names, payable to the order of either, but containing no words of survivorship.

The appellee, Kathryn Mueller, is the same person referred to in the certificates as Katie Miller; Jordan Johnson was her uncle, a bachelor, who died intestate February 2, 1948. Appellee became the administrator of his estate, which included considerable other property, but she failed and refused to account for the said certificates, claiming them as her own.

Citation proceedings to compel the administrator to account for the certificates were heard in the probate court, and then de novo in the circuit court, where a decree was entered to the effect that the certificates containing the survivorship provision were the sole property of appellee, and the others were owned by her and the estate in equal shares. This appeal was perfected by some of the Johnson heirs, and there is no cross-appeal.

Other than the original citation petition, there are no pleadings involved. Considerable evidence was adduced as to the facts and circumstances. The error relied upon for reversal may be stated thus: Appellants contend all the funds in question belonged to Jordan Johnson, that any attempt by him to transfer an interest therein with the right of survivorship, is regulated by statute in this State, that there was no compliance with the statute, therefore, the court erred in failing to hold that all the funds represented by all the certificates belonged to the deceased's estate as a matter of law. Reference is made to Estate of Wilson, 404 Ill. 207 and cases therein cited, and some others.

The appellee, Kathryn Mueller, was called as a witness in her own behalf and objection was made that she was not a competent witness. Since she was the claimant to the funds, against the administrator and the heirs, she was incompetent under sec. 2 of chap. 51, Ill. Rev. Stat. [1951; Jones Ill. Stats. Ann. 107.068]. From other competent testimony we find the following facts:

Jordan Johnson was fond of his niece, Kathryn Mueller, and appreciated her many services and kindnesses, but made no contract to compensate her. About 1939 or thereafter he began to acquire certificates of deposit at banks in Lebanon, Mascoutah and O'Fallon. At each bank he told an official that he wanted his niece, Katie Mueller, to get this money and to put her name in the certificates. On several occasions in taking out additional certificates he repeated that, if anything happened to him, he wanted his niece to get the money. He told a number of friends what he had done, explaining that Katie did things for him and he wanted her to have the money.

All of the funds thus deposited belonged to Jordan Johnson. The banks did not require him or his niece to sign anything; no agreement was signed by them when the certificates were issued, or thereafter.

The evidence indicates the certificates were at sometime handed over to Katie Mueller. At the Lebanon bank, when a certificate was renewed, Katie would be with Jordan Johnson and would produce the certificate from her purse. She still had these certificates in her possession when Johnson died. The others, including those containing no survivorship clause, were found in his home after his death, but had been in her possession. Her sister saw them in her possession and thought she kept them from 1943 on, apparently unaware that they had been returned later to his home.

Appellants objected to testimony concerning Johnson's statement and declarations, but in our opinion such evidence is admissible. It has long been recognized by the courts that people sometimes make deposits in banks in more than one name, for convenience only, and with no intent to change the rights in the money. Accordingly, the mere wording of a certificate or bank book is not usually regarded as conclusive, but surrounding facts and circumstances, and declarations of the depositor are admitted for the purpose of determining whether or not there existed donative intent.

A leading case on this subject is Kelly v. Beers, 194 N.Y. 49, 86 N.E. 980, which has been repeatedly cited as authority by the Illinois Supreme Court. In that case, as here, the depositor told three banks of her intention in taking certificates with two payees and the right of survivorship. In one bank she gave only oral instructions, but the other had her signed statement thereof. It was held all her statements and declarations and the circumstances were admissible, that they showed donative intent, and the survivor was awarded all the funds in accordance with the wording of the certificates.

But the appellants in this case contend that the right of survivorship in certificates of deposit cannot exist in Illinois unless the joint depositors both sign an agreement with the bank so providing. Reliance is placed upon our statute concerning Joint Rights and Obligations, ch. 76, Ill. Rev. Stat. That statute does abolish technical joint tenancy with right of survivorship subject to certain exceptions. In section 1 [1951; Jones Ill. Stats. Ann. 70.01] pertaining to real estate, the exception applies to deeds containing the declaration that the title pass not in tenancy but in joint tenancy. Section 2 [Jones Ill. Stats. Ann. 70.03] pertaining to personal property was added in 1917, and the exceptions apply to survivorship provided by a will or "other instruments in writing."

The provision in section 1 pertaining to real estate was originally in the conveyancing Act. It has never required that persons taking title with right of survivorship should sign anything. But section 2 added in 1917, while it restricted the right of survivorship in personal property to cases of a will or "other instruments in writing," contained a specific provision as to bank accounts to the effect that a joint depositor could draw out funds whether or not the others were living, if there was an agreement to that effect signed by the parties. This section was revised in 1919 by deleting this requirement from the authority to withdraw the deposit, but added a similar provision in a new phrase pertaining to an acquittance of the bank. As thus revised the proviso reads:

"provided, that when a deposit in any bank or trust company transacting business in this State has been been made or shall hereinafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt ...

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