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Murgic v. Granite City Trust & Sav. Bank

FEBRUARY 21, 1964.




Appeal from the Circuit Court of Madison County; the Hon. JAMES O. MONROE, Judge, presiding. Reversed and remanded with instructions.


Rehearing denied March 24, 1964.

This action was originally brought by Peter A. Murgic against the Granite City Trust & Savings Bank for the proceeds of a savings account in said bank in the name of Mike Yurkovich and Peter A. Murgic. The bank answered the complaint and filed a counterclaim for interpleader and joined the Illinois State Trust Company, as administrator of the estate of Mike Yurkovich, deceased. A jury found for Murgic and the Illinois State Trust Company appeals.

On January 29, 1959, Mike Yurkovich and Peter A. Murgic went to the Granite City Trust & Savings Bank. There they met Henry D. Karandjeff, Chairman of the Board, and a discussion was had by Karandjeff and Yurkovich about Yurkovich opening an account. Yurkovich wanted to open a joint account in his name and that of Murgic. Karandjeff explained to Yurkovich the nature of a joint account and that either Yurkovich or Murgic could draw out the money at any time and that it would go to the survivor in case of death of one of them. The banker asked if there was any kinship between the two and was told that there was none, but that they were old friends. The question of relatives was discussed and from Karandjeff's testimony Yurkovich felt that he did not want them to have his money. The original deposit was for $12,500 and both Yurkovich and Murgic signed a joint account card. Yurkovich did not read the card before signing it, but it was explained by Karandjeff. Karandjeff testified that because of the large amount of the deposit, he went into considerable detail explaining the nature of the deposit. The pass book was given to Yurkovich, who handed it to Murgic, but Murgic handed it back. There was some discussion between them about the book, but finally Yurkovich kept it. Later, without knowledge of Murgic, Yurkovich deposited the further sum of $13,500 into the account.

There is no contention that any of the money in the account was contributed by Murgic. Yurkovich made a trip back to his homeland, Croatia (Yugoslavia) in 1955. He was gone about three months and when he came back he frequently talked about his people and the conditions in the old country. There is considerable testimony that he had for years been sending money, food, leather goods and other things to his relatives in Croatia (Yugoslavia). After the deposit of the money on January 29, 1959, and before the second deposit, Yurkovich loaned Murgic $2,000 and took his note. There is evidence that Yurkovich tried to collect this note, but it was not paid. Three days before his death, while in the hospital, Yurkovich asked a friend to get him a lawyer to draw up his will. This was done and the will made a general residuary gift to his relatives in Yugoslavia. It did not mention the joint account.

Murgic is the plaintiff and claims the money as survivor of the joint tenancy. Illinois State Trust Company is an interpleaded defendant and claims the money for the heirs of Mike Yurkovich. The Granite City Trust & Savings Bank is the holder of the money and is the original defendant, and it is ready and willing to pay to the party the courts decide is entitled to it. The appeal here is by the Illinois State Trust Company.

There is very little factual dispute in this cause. There may be some dispute as to the feeling of Yurkovich toward his relatives in Croatia, at the time of the original deposit and up to the time of the making of the will.

Murgic contends that under the joint tenancy law, all that is necessary to prove his right to the money is to show the deposit, execution of the instrument, death of one and the survivorship of the other. That then the burden is upon the administrator bank to show the decedent's intent not to make a joint account gift. The administrator bank contends that the opening of the joint account raises a presumption of a gift, but this presumption may be overcome by competent testimony to contradict the presumption of a gift. And that when a gift is claimed, it must be proven by clear and convincing evidence.

There are a number of recent cases on matters such as are presented by this case and most of them are cited by both appellee and appellant in support of their contentions. While every case has its own particular set of facts, in general they all deal with joint accounts with banks and the disposition of the money after the death of one of the joint account holders.

In re Estate of Schneider, 6 Ill.2d 180, 127 N.E.2d 445, was a case where Schneider deposited in joint tenancy with right of survivorship to him and one Ralston, and not as tenants in common, the sum of $5850.81. After Schneider's death, his executor claimed the money. Ralston admitted the money was all Schneider's, that he contributed nothing to the account, and that Schneider told him that he wanted his name on the accounts so that any time he (Schneider) was sick, Ralston could go and get the money. That Schneider at no time told Ralston that he wanted Ralston to have any of the money in the account. There as here, the survivor claimed the money under the deposit instrument, claiming the deposit card was a contract which established his right to the money and that parol testimony was inadmissible to vary the terms of the agreement. The court held that evidence bearing on donative intent is admissible, holding that the general rule in Illinois is that the facts and circumstances, and the happenings pertaining to such transaction thereafter, may be inquired into for the purpose of aiding the court in ascertaining the intention of the parties. The court in that case held that the money belonged to the estate of Schneider and not to Ralston. Commenting on the deposit card agreement, the court said that the form of the agreement is not conclusive as to the intention of the depositors between themselves. Apparently, the Supreme Court seems to have repudiated the contract theory formerly held in joint bank account cases and held that the proceeds pass to the survivor only if the depositor opened the account with a donative intent. The deposit agreement is presumptive evidence of a donative intent which may be rebutted by oral evidence.

The case of Frey v. Wubbena, 26 Ill.2d 62, 185 N.E.2d 850, holds that legal title may be vested in the holders with right of survivorship by force of the statute (section 4-10 of the Illinois Savings and Loan Act), without regard to common law principles applicable to joint tenancy, but it qualified this holding by citing the Schneider case which held that a court of equity may look behind the form of the transaction and determine questions of real and beneficial interest, i.e., whether there had been a gift. The Frey case was a joint tenancy holding between father and daughters. There was meager testimony to rebut the donative intent and the court held that in the absence of sufficient evidence to rebut the donative intent, the deposit agreement is sufficient to establish ownership in the survivor.

In re Estate of Deskovic, 21 Ill. App.2d 209, 157 N.E.2d 769, was a case where in addition to making the joint deposit, the depositor made numerous declarations that he intended giving the money to the survivor. The court held that there was not only a presumption of a gift, but clear and convincing testimony of the intentions to make the gift.

In re Estate of Fitterer, 27 Ill. App.2d 264, 169 N.E.2d 578, involved a joint bank account with right of survivorship to his second wife. The court interpreting the case of In re Estate of Schneider, 6 Ill.2d 180, 127 N.E.2d 445, held that the Schneider case rejected the contract theory, and was a reflection of the disfavor with which the Legislature and the courts in Illinois view the right of survivorship in personal property; that even before the Schneider case, the contract theory had been rejected in the case of Doubler v. Doubler, 412 Ill. 597, 107 N.E.2d 789. In commenting on the Schneider case, the court there said that in view of the language in the Schneider case it took it to mean that the deposit agreement is presumptive evidence which may be rebutted by oral evidence. That in the absence of contrary evidence, the intention manifested by the deposit agreement is sufficient to establish ownership in the survivor by virtue of the deposit agreement. The court held that there was no evidence that the accounts were established for the convenience of Fitterer; there was no evidence of any substantial withdrawals after the accounts were established and no convincing evidence to rebut the presumption of the deceased's intent to make gifts of the proceeds of the accounts.

In re Estate of Mueth, 33 Ill. App.2d 449, 179 N.E.2d 695, involved a savings account and certificate of deposit in joint tenancy. The joint accounts were in the name of Mueth and his sister Mathilda. That case citing the Fitterer and Deskovic cases, affirms the rule that a deposit agreement setting up a joint account with right of survivorship is presumptive evidence of donative intent, and is effective unless the donative intent is disproved by other evidence. In that case, the court found ...

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