Wright v. White

Beasley, J.

This case involves a dispute in regard to the final account of petitioner, Justice M. Wright, who was appointed guardian of Mabel Laveta Wright, now deceased, and conservator of her assets while she was alive. Petitioner appeals from an opinion and order entered by Judge Frank S. Szymanski of the Wayne Probate Court which determined title to property and allowed expenses in connection with the decedent’s estate.

The decedent lived in Detroit. Her surviving relatives were her brother, petitioner Justice M. Wright, who was seventy-eight years old when these proceedings were commenced, and two nephews. The decedent was two years younger than petitioner. Petitioner lived in North Bay, Ontario, Canada. In September, 1979, some friends of the decedent called petitioner and told him that he had better come to Detroit to look after his sister. Petitioner came to Detroit in the latter part of September and, when he arrived, the decedent’s mental condition was not very good. He stayed in Detroit until mid-December, when he was made the decedent’s guardian, and then took the dece*4dent to North Bay with him. The decedent died in October, 1980. Petitioner claimed that two joint bank accounts in his and decedent’s names belonged to him alone. The heirs-at-law, respondents, claimed that those funds belonged to the estate.

Petitioner filed a final account entitled the "First Amended Account” and petition in support of the first amended account in which he requested reimbursement for various expenses. In the petition, he also requested that the two joint bank accounts in his and decedent’s names, which had been listed as joint assets in the inventory of the first amended account, be paid to him as the surviving owner of the assets. Those assets amounted to $81,844.91.

In his opinion, the probate judge, after making findings of fact and drawing conclusions of law, concluded that petitioner was not entitled "to receive assets from the guardianship estate based upon his claim of joint ownership with rights of survivorship.” He said that he found competent evidence to rebut what he described as the statutory presumption of ownership under MCL 487.703; MSA 23.303. The evidence to which he referred was the testimony of petitioner that the money in the joint accounts was entirely that of the decedent, that he recognized it as her money, and that he withdrew it from the joint account and put it in the "guardian’s account” solely for the purpose of making it available for her needs.

The record indicates that between 1975 and 1978, prior to her mental incompetency, the decedent had opened two joint accounts with rights of survivorship with petitioner. When she became mentally unable to take care of herself, petitioner, then in his late seventies, came from his home in North Bay, Ontario, to help her. This was in September, 1979, and, in December, it became *5necessary for him to be appointed her guardian and the conservator of her estate. In December, 1979, and January, 1980, petitioner withdrew the funds from the joint accounts and placed them in one guardianship account.

Around that time, January of 1980, petitioner took the decedent to his home in North Bay where, as indicated, she died in October, 1980.

When petitioner terminated the joint accounts by withdrawing the funds, he was both the guardian of the decedent and a joint tenant with rights of survivorship with the decedent. By his own testimony, he did not believe that he had the right to take the joint accounts and convert them to his own use. When he withdrew the funds from the joint accounts, he put them in one bank under his attorney’s jurisdiction, with a special arrangement to wire funds to North Bay for the decedent’s benefit as needed.

When the sums were withdrawn from the joint accounts, the joint accounts ceased to exist and MCL 487.703; MSA 23.303 was no longer applicable. In fact, there was a considerable period of time between termination of the joint accounts and the decedent’s death.

When the funds were withdrawn from the joint accounts and deposited in the guardianship account, they were commingled with other money of the decedent. In fact, petitioner withdrew the balances in five other bank accounts that the decedent had in addition to the certificates of deposit which were held jointly with petitioner. During the guardianship, some moneys were withdrawn and used for the decedent’s maintenance.

When the decedent died, the money in the guardianship account became payable to the fiduciary of her estate. Petitioner had no authority to create a new joint tenancy. As previously indi*6cated, the joint tenancy between the decedent and petitioner had ceased to exist when petitioner withdrew the funds from the joint accounts and commingled them with other guardianship funds in the guardianship account.

Thus, we conclude that the withdrawal of the money from the joint accounts served to terminate the joint ownership with rights of survival. The placing of the money in the guardianship account made those funds subject to the statutes regarding guardianship. The guardian had no authority to make a will for his ward. Neither could the guardian control or direct disposition of his ward’s property upon the ward’s death. Consequently, since the joint bank accounts had been terminated and since the money was in the possession of the guardian, upon the decedent’s death that property passed under the laws of descent and distribution. This conclusion is based on the representation that the decedent left no last will and testament. For these reasons, petitioner was not entitled to a sum equal to the amount that had earlier been in the joint accounts.

The dissent reaches an opposite conclusion, first reasoning that petitioner, as guardian, was without power to terminate the joint tenancy. This premise ignores the fact that, in addition to being guardian, petitioner was also the joint tenant with the decedent. As joint tenant, petitioner had the power to legally withdraw the funds from the joint accounts. That was exactly the reason for creating the joint accounts, namely, to make it possible for petitioner to get at some funds quickly on the decedent’s behalf in the event of an emergency, without the necessity of legal proceedings. Of course, that is what happened. When the decedent became unable to take care of herself and her own *7affairs, petitioner, among other things, withdrew the funds in the joint accounts.

Since petitioner clearly had the power in his capacity as joint tenant to withdraw all or any part of the funds in the joint accounts, he likewise clearly had the power to terminate the joint tenancy. He did so by withdrawing all the joint funds and depositing them in a single guardianship account.

The dissent cites First Federal Savings & Loan Ass’n v Savallisch, 364 Mich 168; 110 NW2d 724 (1961), as authority for the proposition that the guardian of a mentally incompetent person lacks the power to terminate a joint tenancy with rights of survivorship created by a joint bank account. In fact, the dissent says that Savallisch prohibits a guardian from withdrawing money from a joint bank account. Most cases would not go that far, but would permit funds to be withdrawn for the incompetent’s necessities. But, under either interpretation, the rule is inapplicable here where one person, petitioner, was both guardian and joint tenant. Because he was joint tenant, petitioner clearly and obviously had the right and power to withdraw funds from the joint accounts and to terminate a joint tenancy to which he was a party. He did not have to be guardian to enjoy these rights and powers, and the fact that he was guardian did not diminish his rights and powers as joint tenant. Thus, since the joint tenancy no longer existed and since Savallisch is distinguishable and does not control, petitioner is not entitled to take the funds as a surviving joint tenant.

While this controls disposition, comment is in order regarding the othér rationale of the dissent. For example, the dissent claims that the only reason the decedent created the joint accounts was to do some estate planning on her own. The dis*8sent does not believe that there was any convenience factor in the decedent’s creation of the joint accounts. We assume that, in creating the joint accounts, the decedent obtained and filed with the bank the usual signature card from petitioner which authorized the bank to honor withdrawal of funds by either petitioner or herself. In this case, the only witness was petitioner. There is nothing in his testimony to indicate that he thought the decedent was indulging in estate planning.

The fact is, the record is silent as to the decedent’s intentions. One conjecture as to her reasons and motivations is as good as another. We would not draw the same inferences as has the dissent. Neither did the probate judge who found as a fact that petitioner’s testimony overcame the presumption of ownership. We are not prepared to say that we would have found differently had we been sitting on the probate court.

The dissent says, "It must be kept in mind that petitioner has two roles in this litigation. He has both purely personal interests and he has interests which arise from his position as conservator. The evidence in this case is clear that petitioner acted in his capacity as conservator when he withdrew the sums of money from the various accounts and placed them into one account.”

While we disagree that there is evidence that petitioner acted as conservator in withdrawing the funds, we do not believe that this proposition is relevant or controlling. The question is whether petitioner had the power to withdraw funds from the joint accounts. Only if petitioner lacked power to withdraw funds from the joint accounts, so as to make his withdrawal of such funds unlawful and a nullity, may the reasoning of the dissent be sustained. This is because the reasoning of the dissent is that (1) even though the funds in the joint *9accounts were withdrawn and the joint accounts closed, and (2) even though the withdrawn funds were commingled with other funds of the decedent, and (3) even though many months passed between the date when the funds were deposited in the guardianship account and the date when the decedent died, nevertheless, legally they remained joint funds that would pass on the decedent’s death to petitioner as surviving joint tenant.

The sine qua non of petitioner’s position is that withdrawal of funds from the joint accounts was unlawful and of no force and effect so that the funds remained as joint funds with rights of survivorship. Consequently, it is only if we conclude that petitioner lacked power to withdraw the funds that this reasoning has any validity. But, as indicated, petitioner could, as a joint tenant with the decedent, lawfully withdraw the joint funds and terminate the joint accounts.

Contrary to the premise of the dissent, petitioner could and did, as a joint tenant, make the joint funds available to maintain his sister. Neither do we agree that, as conservator, he could not use joint funds for the decedent’s maintenance.

The remaining prop in the reasoning of the dissent is the application of the rule in Savallisch. But, as previously indicated, in Savallisch it was not a joint tenant who withdrew the funds, and there was no commingling of the joint funds nor any possibility that some had already been used for the donor’s benefit. See an interesting analysis of this kind of issue in 63 Mich L Rev 629, 652 (1965). Savallisch neither applies nor controls here.

The final issue for consideration by this Court is whether the trial court made adequate findings of fact and properly exercised its discretion when it disallowed part of the expenses claimed by peti*10tioner in the final accounting. We find no error in this regard.

MCL 700.541; MSA 27.5541 indicates that a fiduciary is to be allowed the amount of his reasonable expenses incurred in the administration of the estate and shall also have such compensation for his services as the court in which the fiduciary’s accounts are settled deems to be just and reasonable. In determining the compensation to be awarded for services of the fiduciary, the court must determine the reasonable value of the services performed. In re Baird Estate, 137 Mich App 634, 637-638; 357 NW2d 912 (1984). The burden of proof is on the fiduciary claiming compensation, and he must satisfy the court that the services rendered to the estate were necessary and the charges, therefore, are reasonable. The claimant’s failure to present records concerning his services is usually weighed against him. The trial court’s allowance of charges in favor of a fiduciary is within its discretion and will be reversed only where there has been an abuse of that discretion. In awarding attorney’s fees, the probate court should evaluate the worth of the services rendered based on the evidence presented. In re Weaver Estate, 119 Mich App 796, 799; 327 NW2d 366 (1982). The probate court’s award of attorney fees for services rendered to a decedent’s estate will be overturned only for an abuse of discretion. We find no abuse of discretion in this case. Furthermore, the trial court’s findings of fact were adequate under GCR 1963, 517.1, now MCR 2.517(A). The trial court concluded that some of the amounts claimed by petitioner for his services and the attorney fees were excessive for the services rendered. There was no error.

Affirmed.

*11R. M. Pajtas, J., concurred.