Sage v. FlueckSage v. Flueck
Thе dominant question is whether a joint and survivorship deposit account belongs to'the estate of its creator or tо the surviving joint depositors.
In Ohio, a surviving joint depositor has a right to the proceeds of a joint and survivorship bank account, not as an incident to joint tenancy, which is not recognized in Ohio
(Sergeant
v.
Steinberger, 2
Ohio, 305,
“While joint tenancy with the incidental right of *380 survivorship does not exist in Ohio parties may neverthеless contract for a joint ownership with the right of survivorship and at the death of one of the joint owners the survivor sucсeeds to the title to the entire interest, not upon the principle of survivorship as an incident to the joint tenancy but by the'operative provisions of the contract.” In re Estate of Hutchison, supra, paragraph 2 of the syllabus.
.The contract of deposit need not be in any partiсular form. Any instrument in writing, properly executed, which evidences a meeting of the minds of the parties thereto, is sufficient.
“Thе agreement, though executed on a form furnished by the bank for its own protection, is operative and valid between the parties. ’ ’ 5 Zollmann, Banks and Banking, 244, Section 3223. To the same effect,
Kennedy, Admr.,
v.
McMurray,
The signature card accepted by the bаnk, which was signed by the three joint depositors, and the passbook constitute the contract of deposit in the instant case. The money deposited by Frances Schmitt was, at her request, placed to the general joint account of herself, her brother Theodore, and her sister Catherine, and made “payable to either or the survivor.” Upon аcceptance of the deposit, title to the money as specie passed from Frances Schmitt to thе bank. By placing the deposit to the general joint account of Frances Schmitt, Theodore J. Schmitt and Catherine Flueck, the bank became their debtor, and they, in turn, became the bank’s creditors to the extent of the amount of thе deposit.
“* * * the particular form of deposit found in this case was a general deposit account, into which Green paid his money from time to time, to be repaid on demand, in whole or in part, as called for, in current money. In this kind оf deposit the title to the money deposited passes to the bank from the depositor. The
*381
depositor is not entitled to have the identical thing deposited returned to him, but the bank becomes the depositor’s debtor in the amount оf the deposit. ”-
Cleveland Trust Co.
v.
Scobie, Admr.,
Under this contract of deposit Frances Schmitt created and vested in Theodore and Catherine, in praesenti, a joint interest in the deposit, equal to her own, with unlimited right to draw upon it during their mutual lives, and with a survivorship right in the entire balance upon the death of one or more of the joint depositors. Upon the death of Frances Schmitt the entire balance of the account passed to the survivors, Theodore J. Schmitt and Catherine Flueck. Consequently, the exeсutor of the estate of Frances Schmitt, deceased, is devoid of any right whatever to any portion of this fund.
""A joint and survivоrship account entered into by and between two or more parties “is a contract
inter vivos,
carrying a present, vеsted interest, and can in no wise be affected by the laws of descent and distribution.”
Oleff, Admr.,
v.
Hodapp, Gdn.,
“When a joint deposit agreement with a survivor-ship clause is executed, the deposit vests in the sur *382 vivor without regard to any prior ownership of the fund.” 5 Zollmann, Banks and Banking, 241, Section 3222.
. Counsel for the executor lays much stress upon the fact that the passbook was at all times in the exclusive possession of decedent. However, exclusive possession of the passbook by the creator of the account is a material circumstance but not decisive of the rights of the parties concerned. 5 Zollmann, Banks and Banking, 243, Section 3223.
There were three joint depositors in this case and only one passbook. Conceivably, it was physically impossible for all three to have manual possession of one passbook at the samе time.
“The retention of the exclusive possession and control of the passbook and the right to draw out all the mоney and thus destroy the account have been held not to be decisive of the question of intent or of the joint ownеrship of the deposit and final ownership of the survivor * *
Ill. Tr. & Sav. Bank
v.
Van Vlack,
To the same effect,
Kelly
v.
Beers,
“Delivery of the bank book would not be essential since the contract takes the place of the delivery ordinarily required.
Perry
v.
Leveroni,
There are authorities holding to the сontrary, but we are not convinced to their view.
The intention of decedent with respect to the fund governs. Such intention was clearly expressed in her written contract of deposit and cannot now be made an issue in the casе. Oral testimony to contradict such written expression of intention is incompetent and presents no issue of fact thеreon to the jury for determination.
The Supreme Court of Illinois in Ill. Tr. & Sav. Bank v. Van Vlack, supra, in an action to determine the ownership of a joint savings bank deposit made undеr an agreement payable to undersigned jointly and severally, or on the order of either of the undersigned whether the other be living or not, and that it should be “payable to and upon the joint and several orders of the undersigned or either of them or the survivor of them,” held that evidence of the inconsistent words or acts of the parties' was not comрetent.
We hold, therefore, that the trial court did not err in directing a verdict against the executor.
Judgment of the Court оf Appeals reversed and judgment of the Court of Common Pleas affirmed.
Judgment reversed.