Appeal from Circuit Court, Multnomah County. Richard A. Van Hoomissen, Judge Pro Tempore.
Howard H. Campbell, Portland, argued the cause and filed briefs for appellant.
Gerald R. Pullen, Portland, argued the cause and filed a brief for respondent.
This is a declaratory judgment proceeding in which the parties seek to have determined the ownership of the balance remaining in a savings account in the defendant bank at the time of Ricky Dale Shields' death. The bank is a mere stakeholder. The controversy is between defendant Marjorie Ann Shields, mother of the deceased, and Lola Shields, his wife and the personal representative of his estate. Defendant appeals from a judgment in favor of plaintiff.
The savings account in question was opened in 1953, when Ricky was eleven years old. The passbook was made out to "Ricky Dale Shields or Marjorie Ann
Shields." Except for the deposit of small sums by defendant when Ricky was still a young boy, all of the money deposited in the account was money earned by Ricky. All of the money withdrawn from the account was used for Ricky's benefit. In 1961, when Ricky married, the account contained approximately $500. Five years later it had grown to over $10,000. At that time, $9,600 was withdrawn to pay off the mortgage on Ricky's home. Ricky died intestate on January 4, 1970. By that time, the account had again grown to over $15,000.
Defendant testified in a rather vague way at trial to the effect that Ricky wanted her to use this money for the benefit of his children. She claims the balance by right of survivorship. On the other hand, plaintiff testified to the effect that Ricky intended that on his death the money should go to plaintiff. She claims it as the property of Ricky's estate.
No survivorship provision appears on the face of the passbook introduced into evidence and no other evidence was adduced at trial which indicated that the account contract included a survivorship agreement.*fn1 The evidence of the source of the funds in the account and their use during Ricky's life was sufficient to establish that defendant was not intended to have a beneficial interest in the account during Ricky's lifetime.*fn2 The only question is whether, in the absence of an express survivorship agreement, a right to the fund accrued to the defendant upon Ricky's death.
There are cases which hold that when A deposits his own money in a savings account payable to "A or
B", with no provision for survivorship, no rights are created in B upon A's death in the absence of evidence showing that A intended such survivorship rights to arise.*fn3 Some courts have held that accounts of this kind do create a right of survivorship in the absence of evidence to show a contrary intent.*fn4 Frankly, we know of no empirical data which shows either presumption to be more justifiable than the other, or which would ...