Summary
In Berberick v. Courtade, supra, the court had before it the question as to whether a joint and survivorship bank account passed "by deed of gift" and became distributable under the provisions of Section 10503-5, General Code, or whether such bank account passed by contract.
Summary of this case from Lambert, Admr. v. LambertOpinion
No. 27703
Decided July 24, 1940.
Descent and distribution — Joint and survivorship deposits in financial institution — Pass to survivor under contract and not by deed of gift — Distribution upon intestacy not governed by half-and-half statute — Section 10503-5, General Code.
Where a husband and wife have each deposited money in a common fund in a financial institution with a stipulation that it is payable to either or the survivor, such funds, upon the death of the husband, pass to the surviving wife by virtue of the contract and not "by deed of gift" and, upon the death of the latter intestate, the distribution thereof is not governed and controlled by Section 10503-5, General Code, commonly known as the half-and-half statute.
CERTIFIED by the Court of Appeals of Allen county.
This case originated in the Probate Court of Allen county, Ohio, as an action to determine the heirs and distributees of Mary Waller, deceased. Mary Waller's husband, Anthony, had died testate on the twenty-third day of November, 1935, predeceasing her.
By will, Anthony Waller had devised to his wife, Mary Waller, his entire estate, real and personal, and the inventory of his estate disclosed that he died seized in fee simple of an undivided one-half interest in certain real estate located in the city of Lima, Ohio.
At the time of his death, he and his wife had numerous certificates of deposit, savings accounts, notes and stocks of various financial institutions which were payable to either of them or the survivor of them. After his death, Mary Waller had most of these instruments transferred to her, as the survivor, and at the time of her death these certificates, savings accounts, notes and stocks, in substantially the same amounts that they bore at the death of Anthony Waller, were in her name. In a like manner, the automobile which had been in his name was transferred to her name.
Upon the death of Mary Waller, her administrators filed an inventory which listed these certificates, also a savings account, notes and stocks as part of her estate. In like manner was included in this inventory the automobile, some specie, household goods and the real estate, and listed in conjunction therewith were the heirs of Mary Waller, but not the heirs of Anthony Waller.
This action was brought to require the administrators of the estate of Mary Waller to set forth in detailed schedule the assets which Mary Waller received in any form by will or by gift from Anthony Waller; to require the heirs of Mary Waller to set up by answer what rights they claim as her heirs; and to require the court to determine the interests of the parties to this action in the estate of Mary Waller.
Issues having been made by answers of the parties and replies thereto, the cause was tried and submitted to the Probate Court. That court found for the plaintiff, determined the degrees of relationship and the percentage each heir of Mary Waller and of Anthony Waller should take in the property which came to Mary Waller from her deceased husband, which the court found included the automobile, all the certificates of deposit, notes, savings accounts and stocks, and in addition thereto an undivided one-half of the real estate. The court further determined relationship to and proportions inherited by the heirs-at-law of Mary Waller in her property which had not come from her deceased spouse, which the court found to be the household goods, the specie and the other undivided one-half in the real property.
An appeal was thereupon prosecuted to the Court of Appeals by the heirs-at-law of Mary Waller. This appeal relates only to the automobile and the joint and survivor notes, certificates and accounts. The Court of Appeals, upon hearing, affirmed the judgment of the Probate Court, one judge dissenting. Finding, however, that the judgment pronounced in this case was in conflict with the decision of the Court of Appeals of the Sixth Appellate District in the case of Knauss, Admr., v. Knauss, decided December 6, 1937, reported in 58 Ohio App. 183, 16 N.E.2d 483, the Court of Appeals certified the case to this court for final determination.
Mr. R.S. Steiner, Mr. Alvin A. Zurfluh and Mr. Glen M. Haas, for appellees.
Mr. Earl B. Carter, Mr. Miner A. Atmur and Mr. Oren E. Dickason, for appellants.
The primary and paramount question of law presented for our consideration and decision in this case may be very concisely stated. It is as follows:
Where a husband and wife have each deposited money in a common fund in a financial institution with a stipulation that it is payable to either or to the survivor, do such funds, upon the death of the husband, pass to the surviving wife "by deed of gift" and, upon the death of the latter, is distribution governed and controlled by provisions of Section 10503-5, General Code, commonly known as the half-and-half statute?
The record in this case discloses that all the items in controversy, consisting of notes, certificates and deposit accounts, according to appropriate recitals accompanying them, thus bearing their own evidence as to ownership, were the property of Anthony Waller and Mary Waller. They were specifically made payable to either or the survivor. These deposits, whether evidenced by notes, certificates or savings account books, had commenced in 1923 and continued until approximately the time of the death of Anthony Waller in 1935. It appears, however, that the parties had joint and survivorship accounts beginning as early as 1914; but connection between those accounts and the items in question here is not disclosed by the record.
During those years, Anthony Waller had income by way of salary and otherwise, and Mary Waller had realized about $1,800 from inherited property. Neither the contributions each made to the common fund nor the proportion of the total amount is disclosed by the record, and no presumption is to be indulged other than that each contributed a portion of each of the funds. It follows, then, that the portions furnished by each constituted a valuable consideration for the portions furnished by the other. A contract relation was established which was supported by mutual considerations. The rights of the parties were determined and fixed by contract at the time the deposits were made pursuant thereto, and death does not abrogate the rights of the parties arising from such contract. Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St. 241, 151 N.E. 373, 48 A. L. R., 182; In re Estate of Hutchison, 120 Ohio St. 542, 166 N.E. 687; Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St. 432, 195 N.E. 838; Sage, Exr., v. Flueck, 132 Ohio St. 377, 7 N.E.2d 802; In re Estate of Fulk, 136 Ohio St. 233, 24 N.E.2d 1020; Deal's Admr. v. Merchants' Mechanics' Savings Bank, 120 Va. 297, 91 S.E. 135; Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371; New Jersey Title Guarantee Trust Co., Exr., v. Archibald, 91 N.J. Eq. 82, 108 A. 434; Kennedy, Admr., v. McMurray, 169 Cal. 287, 146 P. 647; 7 American Jurisprudence, 299, Section 425.
Where such deposits are no longer subject to being divested by one of the depositors, the survivor, by virtue of the specific provisions of the contract, becomes the sole owner thereof. In this instance, therefore, Mary Waller took the property in question upon the death of her husband, not by devise, bequest, inheritance or by deed of gift, but under and by virtue of the contract. The holding of this court as announced in the syllabus in the case of In re Estate of Hutchison, supra, is applicable here:
"While joint tenancy with the incidental right of survivorship does not exist in Ohio parties may nevertheless contract for a joint ownership with the right of survivorship and at the death of one of the joint owners the survivor succeeds 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."
The decision of this court in the case of Tax Commission v. Hutchison, 120 Ohio St. 361, 166 N.E. 352, has been referred to as inconsistent with the view above expressed. But, as there held, it is only by reason of the specific provisions of Section 5332, General Code, that the fund constituting a joint and survivorship account was subjected to the inheritance or succession tax.
We are in accord with the view that the automobile in question, the bill of sale of which was in the name of Anthony Waller, as was also the automobile license at the time of his death, passed to Mary Waller by bequest under the general terms of the will of Anthony Waller, and is subject to the provisions of Section 10503-5, General Code, but, for the reasons hereinbefore stated, find that the majority of the Court of Appeals was in error in holding that the provisions of Section 10503-5, General Code, control or affect the distribution of the funds evidenced by bank savings deposits, the certificates of deposit, shares of stock and notes in question. In the respect stated, the judgment of the Court of Appeals is reversed.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN and HART, JJ., concur.