Cashman v. Mason (166 F.2d 693, 1948)

RIDDICK, Circuit Judge.

Edith Cole Cashman, a resident of Illinois, brought this action against Ellsworth Mason and the Northwestern National Bank and Trust Company of Minneapolis, residents of Minnesota, to recover the money on deposit in the bank on September 30, 1943, in two accounts which on the date mentioned were carried on the books of the bank as joint accounts in the name of Mrs. A. W. Ross or appellant. Appellant claims ownership of the funds on deposit as donee of Mrs. Ross. The liability of ap-pellees is predicated on the charge that the bank wrongfully delivered appellant’s property to Mason.

In 1941 Mrs. A. W. Ross was an elderly widow living in Minneapolis. She was in' ill health and subject to periodic attacks of illness which incapacitated her for some time. Among her relatives were a niece, Edith M. Cole, now Edith Cole Cashman, then living in Springfield, Illinois, where she was employed as a stenographer, and a brother, Ellsworth Mason. In June 1941 Edith Cole came to Minneapolis to visit Mrs. Ross. Either shortly before or after the arrival of Edith M. Cole in Minneapolis Mrs. Ross told a public accountant who looked after tax matters for her and for a business concern in Minneapolis which she controlled that since she had no children she wanted to make Edith M. Cole her “heir apparent”, and that for this purpose she was going to have her bank accounts placed in the joint names of herself and Edith M. Cole. At this time Mrs. Ross was the owner of two deposits in the Northwestern National Bank and Trust Company of Minneapolis, one a savings deposit and the other a checking account.

On July 12, 1941, Mrs. Ross had $1,048.13 on deposit in her savings account and $11,-654.67 in her checking account. On that day she and Edith M. Cole went to the bank, where Mrs. Ross directed the bank to change the title of the accounts from “Mrs. A. W. Ross” to “Mrs. A. W. Ross or Edith M. Cole.” At the time this change was made Mrs. Ross and appellant signed the following agreement with the bank for the savings deposit:

“The funds deposited in this account are the joint property of the undersigned, and the bank may discharge its obligation' for the same by payment to or upon the written order of either, or to the survivor of the undersigned without reference to the ownership of the funds deposited.”

The contract signed by Mrs. Ross and appellant for the checking account contained the following provision:

“All funds now or hereafter deposited in said account by either or any of the depositors shall be the property of the depositors jointly with the right of sur-vivorship. Each depositor shall have complete and absolute authority over said account during the joint lives of the depositors and may withdraw all or any part of such funds on checks or other withdrawal orders signed by either or any of the depositors and by the survivor or survivors in case of death of any thereof.”

In January 1942 the appellant came to Minneapolis to live in the home of Mrs. Ross. While there she was first employed as a stenographer at a salary of $25 a, week by the business concern which Mrs. Ross controlled, and was later promoted to vice president at a salary of $100 a week. She continued to live with her aunt until January 1943 when some friction developed between them, probably caused by the fact that both were in ill health. That month she left the home of Mrs. Ross, but continued to reside in Minneapolis until April 1943 when she resigned her position of vice president in the Ross business and returned to her home in Illinois.

After appellant left Mrs. Ross’s home in January 1943 there was only the most casual contact or association between them. From July 1941 until September 30, 1943, Mrs. Ross continued to make deposits and withdrawals from both of the bank accounts. Edith Cole never deposited any money in either account and never made any withdrawals from either account by checks signed by her. She never asserted any right of control over or interest in the •deposits until after the death of Mrs. Ross. On the other hand, she had a separate bank account in her own name in which she deposited her earnings. While living with Mrs. Ross she drew a few checks on the joint checking account all of which were signed “Mrs. A. W. Ross by Edith M. Cole.” These checks were apparently for payment of obligations incurred by Mrs. Ross.

On September 30, 1943, Mrs. Ross went to the bank and made arrangements to change the title of the joint checking account which still remained in the name of herself or Edith M. Cole. This was accomplished by written order given to the bank as follows:

“You are instructed to change the title