
335 Mich. 291 (1952)
55 N.W.2d 835
BETKER
v.
IDE.
Docket No. 66, Calendar No. 45,615.
Supreme Court of Michigan.
Decided December 9, 1952.
George B. Wells, for plaintiff.
Edwin C. Ide, in pro. per.
BUTZEL, J.
Ida L. Warner was a former resident of Almont, Michigan, where she owned some property. She had sold a farm near Almont on land contract before moving to Detroit. Beatrice Betker, plaintiff, is the daughter of Mrs. Minnie Betker, who had been a friend of Mrs. Warner for many years. For a time Mrs. Warner and Mrs. Betker owned farms in the same neighborhood; they were also distantly related through marriage. Mrs. Warner also knew plaintiff very well. At some unstated day in December, 1948, plaintiff agreed to make collections on the land contract for Mrs. Warner. Mrs. Minnie *293 Betker, after both the stenographer and the judge told her that she would have to speak louder as they could scarcely hear her, testified as follows:
"I guess I'll have to talk louder. `Bea' done the business for her and she wanted `Bea' always to take care of her business. She said that if anything happened to her, that she wanted `Bea' to have anything that is left, if there was anything left in the bank account. Mrs. Warner, deceased, said that she was going to open a bank account and that `Bea'  that is my daughter  and her was going to have it together, and that if anything happened to her it would be hers. Beatrice should be able to draw upon that account, and Mrs. Warner too. * * * Just the 2 of them. * * *
"If Mrs. Warner needed the money for any purpose or for the stove or something like that, she could take money out of it, without asking. The money in that bank account was all Mrs. Warner's and Beatrice, my daughter, didn't put any of her own money into it. If Mrs. Warner had been ailing and had to eat it up, it would have been all right, too, even after Mrs. Warner went to Detroit. We were close together, very close."
Shortly after the beginning of January, 1949, Mrs. Warner opened a separate account in the commercial department of the Almont Savings Bank, with the name of the depositor entered on the book of the bank as "Ida L. Warner and/or Beatrice Betker," or as appears in the original exhibits on file in the court, "Ida L. Warner &/or Beatrice Betker." It was so entered by one of the tellers of the bank. Mrs. Warner received a checkbook and also a passbook. She drew 2 checks on the account. Beatrice Betker deposited the payments thereafter collected by her from the vendee on the land contract in the account. She made no withdrawals therefrom. The balance due on the contract was paid up quickly so that upon the death of Mrs. Warner on May 8, 1951, the balance *294 in the bank account was approximately $4,000. Edwin C. Ide was appointed executor and in that capacity he is being sued as defendant in the instant case. Shortly after the death of Mrs. Warner the bank turned the balance in the account over to Mr. Ide, as executor, at his request. Thereafter plaintiff, claiming that the balance belonged to her as a survivor of herself and Mrs. Warner, brought this action.
The case was heard by the trial court without a jury. The cashier of the bank testified that when the bank opened an account in the name of one person "and/or" another, it always added the additional words "payable to either or the survivor" if the account was in the savings department, but that if it was in the commercial department it was the custom of the bank not to add the additional words of survivorship, notwithstanding the fact that it was a survivorship account. Further testimony by the cashier in regard to the bank's practice in handling "and/or" accounts was as follows:
"Q. In your bank, in the ordinary course of business, there are depositors who let agents transact their business for them on the depositor's bank account?
"A. That is right.
"Q. And let them withdraw checks from the depositor's bank account?
"A. They give them power of attorney as an agent.
"Q. Or, as in this case, if one party was later shown was the owner of the money and the other one acted for her, an and/or deposit book would be convenient for that purpose, too?
"A. It could be.
"Q. And it often is, isn't it, in your banking experience?
"A. Usually it is a joint account, not made as an agent.
*295 "An account jointly with the right of survivorship isn't made too often in a commercial banking deposit, only in the case of man and wife"
No new deposit card was made out with signatures, nor was plaintiff's signature obtained for the new account. The bank had her signature on file in another account. From the cashier's testimony, it can be only a matter of conjecture whether Mrs. Warner actually intended that plaintiff was to have survivorship rights in the account at the time it was opened. This is substantially all of the testimony bearing on the question of the rights of the survivor in the bank account. The cashier of the bank who testified was not present at the time the account was opened. The teller who opened the account, for reasons not disclosed by the record, did not testify.
The judge held in favor of the plaintiff. He stated:
"Taking that in connection with the conversation which took place before the account was opened, I think that the fair and just construction of the transaction is that it was, and was intended by the parties to be when it was created, an account which has the effect of being payable to either of the joint parties to it during the lifetimes of both and to the survivor, whoever she might have been at the time of the death of either one. That being the case, under the express provisions of [CL 1948, § 487.703] Stat Ann 1943 Rev § 23.303, the bank would have been protected in withholding the sum of $4,000 from the administrator. It would likewise have been protected if it had paid that sum to the plaintiff in this case, Beatrice Betker. I think under that statute it was the duty of the bank certainly to so withhold the money and it would have been perfectly proper for the bank to pay it over as above indicated. This being the case, from a rather narrow standpoint, the defendant has no right to the possession of the money and never did have."
*296 The judge largely based his decision upholding the right of plaintiff's claim on the bank survivorship statute, CL 1948, § 487.703 (Stat Ann 1943 Rev § 23.303). The present case is not such as to come within the statute which applies only to deposits that are made in form to be paid to either or their survivor. The statute is for the benefit and protection of both the banks and their depositors. It creates a presumption in favor of survivorship when the joint deposit in form is payable to the survivor. Even had it been so made out such presumption can be rebutted by competent evidence. Van't Hof v. Jemison, 291 Mich 385; Pence v. Wessels, 320 Mich 195. The statute cannot be invoked in the instant case and it was error so to hold. While in Equitable & Central Trust Co. v. Zdziebko, 260 Mich 366, partly relied upon by plaintiff, we said that if plaintiff were otherwise entitled to the deposit, her rights ought not to be jeopardized by the lax methods of the bank in transacting its business and keeping its records, and that strict formalities are not required in creating a joint bank account with right of survivorship, that case is readily distinguishable. The formality there lacking consisted of the bank's failure to open an entirely new account, when, in a joint account payable to a mother and daughter or their survivor, the daughter died and at the request of the mother another daughter's name was substituted on the books of the bank. There was proper testimony admitted to show what occurred at the bank, where the signatures of both the mother and the substituted daughter were on file. The account, at all times, was in form payable to either of them or the survivor. The instant case is far different. In Negaunee National Bank v. Le Beau, 195 Mich 502 (LRA1917D, 852), the deposit was made in the names of a father and daughter or their survivor. It was held to be a gift inter vivos, notwithstanding the fact that the *297 father had kept the passbook in his own possession. There, a former statute similar to the present one (CL 1948, § 487.703, supra), was expressly not considered an attack having been made upon that statute's constitutionality. In State Bank of Croswell v. Johnson, 151 Mich 538, the deposit was in the name of 2 persons or their survivor. On the other hand, in Peoples State Bank of Belleville v. Allstaedt, 301 Mich 662, we said in discussing the statute in relation to "survivorship," that "the statute requires written evidence of such intention." It would serve no good purpose to further discuss the multitude of cases in this and other jurisdictions where similar questions have arisen. The statute, supra, was passed for a good purpose and can easily be followed.
The testimony is insufficient to establish plaintiff's claim. Obviously, Mrs. Warner cannot testify. Her will, made some time after the occurrence of the events hereinbefore stated and expressly providing for the disposition of the moneys in the bank account, was properly excluded. Pence v. Wessels, supra. As the testimony of plaintiff's mother was believed by the judge, we must accept it as true, notwithstanding the fact that she was not a wholly disinterested witness. The bank transmitted the full balance of the account to the executor of Mrs. Warner's estate after her death. The cashier testified that this was due to a mistake of the teller. That action, however, tends to refute the cashier's statement as to the custom of the bank when "survivorship" accounts are opened in the commercial department. There was no gift inter vivos, as at the time of the conversation with the mother, there was nothing to give; at most it was a mere statement of an intention. The account was not in form payable to the survivor. The proofs are totally lacking as to what Mrs. Warner said at the time the account was opened. The trial judge stated that the plaintiff was *298 entitled to the deposit or one-half of it. A holding that she is entitled to one-half of it, as a tenant in common, refutes the claim of survivorship. As there was no gift, plaintiff did not become entitled to a half or any part of the account. Plaintiff did not sustain the burden necessary to make out a prima facie case.
The judgment must be reversed and one entered for defendant, who will recover costs.
ADAMS, C.J., and DETHMERS, CARR, SHARPE, and REID, JJ., concurred with BUTZEL, J.
BUSHNELL and BOYLES, JJ., concurred in the result.
