In Re Dunlap Estate

67 Mich. App. 247 (1976) 240 N.W.2d 762 In re DUNLAP ESTATE CITY BANK & TRUST COMPANY v. LEIGHTNER Docket No. 22252. Michigan Court of Appeals. Decided February 9, 1976. Guy E. Christian, for plaintiff. Ronald J. Parker, for defendant. Before: N.J. KAUFMAN, P.J., and T.M. BURNS and M.F. CAVANAGH, JJ. T.M. BURNS, J. By this action, plaintiff, as executor of the estate of Esther Dunlap, sought to recover the contents of a safe deposit box, which contents were given to defendant after Mrs. Dunlap's death. After evidence was presented, both parties moved for a directed verdict. The motions being denied, the case went to the jury, which found for defendant. The trial court denied plaintiff's motions for judgment notwithstanding the verdict and for a new trial, and plaintiff now appeals as of right. Decedent leased a safe deposit box at the National *249 Bank of Jackson. Defendant, Mrs. Dunlap's only child, was named as co-lessee of the box on the lease agreement. Only decedent had deposited or removed property from the box prior to her death, and she paid the rental on the box. When inventoried, the safe deposit box was found to contain, among other things, a large envelope which contained three smaller, sealed envelopes full of money totalling over $20,000. The cash and other items found in the box were given to defendant. Plaintiff demanded that defendant turn the property over to it as executor of the estate. Defendant refused, hence this action. The issue on appeal is whether the trial court erred reversibly in refusing to enter a directed verdict or a judgment notwithstanding the verdict in its favor. In addressing ourselves to this issue, we are called upon to review the facts that were brought out at the trial and all legitimate inferences therefrom in the light most favorable to the nonmoving party and determine whether reasonable men could differ in deciding the ultimate issue: whether the decedent intended that the money be held as joint property. See Isom v Farrugia, 63 Mich App 351; 234 NW2d 520 (1975). The evidence upon which the parties relied in proving the decedent's intent consisted of the safe deposit box lease, the envelope which contained the money and slips of paper found inside the envelope. The safe deposit box lease, which gave defendant the right of access to the box, was introduced into evidence to indicate that Mrs. Dunlap intended that defendant have an interest in the contents. Plaintiff contends that the jury should not have been permitted to judge the effect of the lease on the title to the property found in the box. Defendant *250 contends that the lease constitutes a part of the circumstances from which decedent's intent may be inferred. The lease itself does not provide for the passage of title of the contents of the box, but simply provides for the right of access.[1] While such joint right of access certainly would not alone effect a change in ownership of the contents of the box, Lilly v Schmock, 297 Mich 513; 298 NW 116 (1941), it is one factor which may properly be considered in arriving at the decedent's intent regarding another's interest in such contents. See In re Peterson's Estate, 239 Mich 452, 454; 214 NW 418 (1927). It was not reversible error for the trial court to allow the jury to consider the lease terms. While they may not constitute clear and convincing proof of Mrs. Dunlap's intent, they are probative of such to some extent. Another exhibit challenged by plaintiff was the large envelope in which the money was found. The envelope bears the date April, 1967, and the following inscription: *251 "Property of — "Esther Ruth Dunlap Mother "when deceased belongs to "Stewart Eugene Leightner Son "for his absolutely" The envelope contained the money and two slips of paper. Paper "A" is dated July 30, 1971, and shows a column of figures and total of $19,760. Paper "B" contains a similar column of figures but with a total of $13,760. On the reverse side of Paper "B" is the notation "Joint property of Esther Ruth Dunlap and/or Stewart Eugene Leightner". Defendant contended that the latter inscription evidenced an intent on the part of the decedent that the money was to be held jointly by herself and her son. Plaintiff contended that the inscription on the envelope evidenced an intent to hold the property as her own until her death, at which time it would pass to her son. Considering this evidence and inferences arising therefrom in the light most favorable to defendant, we conclude that reasonable minds could differ on the issue of decedent's intent. The evidence is certainly not clear that Mrs. Dunlap intended to make an inter vivos gift of the money (or any part thereof) to defendant, but there is evidence supporting each party's argument. Defendant's right of access to and removal of the contents of the box prior to Mrs. Dunlap's death and defendant's knowledge of this fact tends to support a gift theory. The inscription on the slip of paper found with the money evidences an intent that defendant had a then present interest in the contents of the envelope. On the other hand, there is evidence to indicate that Mrs. Dunlap intended her son to have an interest in the money only after her death. But *252 again, viewed in a light most favorable to defendant, the evidence was such that reasonable minds could differ, and the question was properly submitted to the jury for resolution. Plaintiff's other allegations of error are without merit. Affirmed. Costs to defendant. NOTES [1] "It is agreed and understood that all or any one of us have the right of access to said safe, for any purpose (including the right to remove or exchange contents), the right to exchange said safe for another at a greater or less rental, the right to surrender said safe and terminate the contract, the right to appoint a deputy with full rights of the Lessee or Lessees making the appointment (except the right to delegate his/her authority), and the right to revoke said appointment and discharge the Lessor from liability arising from the rental thereof. The survivor or survivors of us is/are to have the right of access thereto for any purpose, in case of the death of any one or more of us, and shall have all the powers and rights in respect to said safe, that all or any one of us can exercise during our joint lives. The Lessor shall incur no liability as to the above granted rights and shall be protected against all Lessees of the safe, their assigns, heirs, executors and administrators in recognizing such rights as granted in this paragraph to the joint Lessees." See MCLA 487.721; MSA 23.1123.