Fecteau v. Cleveland Trust Co.

• Decision Date: 08 June 1960
• Docket Number: No. 36198,36198
• Citation: 12 O.O.2d 139,171 Ohio St. 121,167 N.E.2d 890
• Parties: , 12 O.O.2d 139 FECTEAU, Appellee, v. CLEVELAND TRUST CO., Appellee; Larkin, Appellant; Blaser, Adm'x, Appellee.
• Court: Ohio Supreme Court

Page 121

171 Ohio St. 121

167 N.E.2d 890, 12 O.O.2d 139

FECTEAU, Appellee, v. CLEVELAND TRUST CO., Appellee; Larkin, Appellant; Blaser, Adm'x, Appellee.

No. 36198.

Supreme Court of Ohio.

June 8, 1960.

Syllabus by the Court.

1. Section 2109.50, Revised Code (Recodification Act of 1953), authorized a person interested in a trust estate to file a complaint in the Court of Common Pleas against any person suspected of having been or being in possession of any moneys or choses in action belonging to such estate, and the filing of such complaint by an interested person required the court to cite the person charged to appear before it and be examined under oath respecting the matter of the complaint.

2. A petition and complaint comes within the provisions of Section 2109.50, Revised Code (Recodification Act of 1953), where it alleges facts showing that the person filing it is a person interested in the estate of a decedent, and where it contains the further allegations that moneys deposited in a bank during the lifetime of the decedent in the joint names of the decedent and another with right of survivorship were so deposited for convenience only and in reality were the sole property of the decedent and belong in his estate, and that such other unauthorizedly withdrew the moneys from the account during the lifetime of the decedent and deposited the same in an account in such other's name where such moneys remain.

3. The fact that a bank account is carried in the names of two persons jointly with right of survivorship is not always conclusive as to the ownership of the account, and, where a controversy arises as to the ownership of such account, evidence is admissible in a proper case to show the true situation.

This cause originated in the Court of Common Pleas of Cuyahoga County with Dorothy Joyce Fecteau as plaintiff and The Cleveland Trust Company, June A. Larkin and Alice Blaser, administratrix of the estate of Peter E. Fecteau, deceased, as defendants. It was brought under the provisions of Section 2109.50, Revised Code (Recodification Act of 1953), which provided, inter alia:

'Upon complaint made * * * to the court of common pleas by a person interested in a trust estate * * * against any person suspected of * * * being or having been in the possession of any moneys * * * or choses in action of such estate, said court shall cite the person so suspected forthwith to appear before it to be examined, on oath, touching the matter of the complaint.'

The petition and complaint alleges in substance that plaintiff is the surviving spouse and an heir at law of Edward H. Fecteau, who died May 11, 1954, and who was the son, next of kin and only heir at law of Peter E. Fecteau who died July 1, 1952; that plaintiff is interested in the estate of Peter E. Fecteau, now in process of administration; that Peter E. Fecteau, during his lifetime, was the sole owner of a savings account and a checking account in The Cleveland Trust Company; that, as a matter of convenience, the name of defendant June A. Larkin was placed on such accounts with the notation, 'either may draw--balance at death of either, payable to the survivor'; that, while Peter E. Fecteau was seriously ill and unconscious, defendant Larkin, without authority and with intent to appropriate such savings account and checking account to her own use, did withdraw the same and redeposit the proceeds in an account in her own name in The Cleveland Trust Company; 'that said money is still so on deposit in the name of the defendant, June A. Larkin; that said money so on deposit is, in fact, the sole property of the estate of said defendant, Peter E. Fecteau; that the defendant June A. Larkin is withholding same'; and that defendant Alice Blaser, as administratrix of the estate of Peter E. Fecteau, has neglected and refused to attempt to recover such money for the estate.

The prayer of the petition is that defendant Larkin be cited to appear before the court for examination, that judgment be rendered against her in a named sum with interest, penalty and costs, and that the money on deposit in her name be ordered paid over to the estate of Peter E. Fecteau.

Interrogatories, covering the status of the accounts described, are attached to the petition, one set being directed to The Cleveland Trust Company and the other to June A. Larkin. Such interrogatories were answered to the effect that on June 27, 1952, June A. Larkin withdrew the sum of $4,930.70 from the savings account and the sum of $1,103.67 from the checking or commercial account, both carried in the names of Peter E. Fecteau and June A. Larkin, and deposited such sums on the same day in a commercial account in The Cleveland Trust Company in her own name alone. Answers were filed by The Cleveland Trust Company, Alice Blaser, administratrix, and June A. Larkin, containing admissions and denials. The answers of Blaser, administratrix, and Larkin challenge the legal capacity of plaintiff to institute and maintain the proceeding. A reply joined the issues.

Thereupon, defendant Larkin moved the court to dismiss the petition and complaint on the grounds (1) that plaintiff is not a proper party in interest to bring the action, and (2) that the petition and complaint does not state a cause of action under Section 2109.50, Revised Code, for the relief prayed for.

The court sustained the motion and dismissed the petition and complaint.

Plaintiff then perfected an appeal on questions of law to the Court of Appeals, which court reversed the judgment below and remanded the cause for further proceedings. A part of the judgment entry of reversal is as follows:

'* * * and the judgment of said Cuyahoga County Common Pleas Court is reversed for the reason that the sole issue herein as presented by the pleadings deals directly with the question of defendant, June A. Larkin, 'being * * * in possession of monies * * * of such estate' of Peter E. Fecteau, deceased, under the provisions of Sections 2109.50 and 2109.52 of the Revised Code. The issue of the ownership of the money is not determined by the form of the account but is a question of fact to be determined by the court or jury from all surrounding facts and circumstances and consequently comes within the purview of the above cited sections. We, also, hold the plaintiff to be an 'interested person' and therefore a proper party plaintiff.'

This court sustained a motion to require the Court of Appeals to certify the record, and the cause is now here for review and determination on the merits.

Davies, Eshner, Johnson & Miller and Francis B. Douglass, Cleveland, for appellant June A. Larkin, and appellee Alice Blaser, administratrix.

Apple & Apple, Cleveland, for appellee dorothy Joyce Fecteau.

Stark, Jett, Biechele & Hopf, Cleveland, for appellee Cleveland Trust Co.

ZIMMERMAN, Judge.

Beginning with the case of Cleveland Trust Co. v. Scobie, 114 Ohio St. 241, 151 N.E. 373, 48 A.L.R. 182, this court has decided a number of controversies involving the ownership of joint and survivorship bank accounts. Frequently the disputes have arisen upon the death of one of the joint depositors and have involved the principle that, where one has created an account with his own money and has then made another a joint owner with right of survivorship, 'an intent to transfer a present interest in the fund must be shown.' The decisions have often turned on whether, under the evidence, such intent was proved. Where it was, the survivor prevailed and was awarded the money. See In re Estate of Hatch, 154 Ohio St. 149, 93 N.E.2d 585.

Under the Ohio rule the creation of a joint and survivorship bank account is a contractual matter, and, where a contest arises as to the ownership of funds in an account, carried in the joint names of two people, and one of them has wholly withdrawn and appropriated such funds to his own use, such case is to be decided on its own facts. The form of the deposit is not conclusive, and the circumstance that by the terms of the deposit either person may withdraw the whole amount is not always dispositive of the issue of ownership.

The real intent of the parties is often a question of fact, and evidence may be admitted to show that intent, even where by signature card or in some other way a joint account has apparently been established. See 7 Ohio Jurisprudence (2d), 253, Section 120 et seq., and 7 American Jurisprudence, 299, Section 425 et seq.

In the instant case, the petition and complaint flatly alleges that the savings and checking accounts were the exclusive property of Peter E. Fecteau, and that only for convenience was the name of June A. Larkin added with the provision that 'either may draw--balance at death of either, payable to survivor.' The allegation is further made that, while Peter E. Fecteau was still alive and helpless, June A. Larkin unauthorizedly withdrew these funds belonging wholly to Peter E. Fecteau from the accounts and deposited them in an account in her own name where such moneys remain. In our opinion, these allegations state a case within the quoted provisions of Section 2109.50, Revised Code. Whether plaintiff can prove her charges is another matter of no present concern. So far as the record discloses there was no formal written agreement covering the deposits and signed by the parties. See, Oleff v. Hodapp, 129 Ohio St. 432, 438, 195 N.E. 838, 841, 98 A.L.R. 764; Sage v. Flueck, 132 Ohio St. 377, 383, 7 N.E.2d 802, 805; and annotation, 33 A.L.R.2d, beginning at page 569. And here the money was withdrawn from the bank accounts prior to the death of Peter E. Fecteau.

It is suggested that the cases of Goodrich v. Anderson, 136 Ohio St. 509, 26 N.E.2d 1016, In re Estate of Black, 145 Ohio St. 405, 62 N.E.2d 90, and In re Estate of Leiby, 157 Ohio St. 374, 105 N.E.2d 583, have relevancy to the instant case. But, with perhaps the exception of the Goodrich case, none of those cases, as does the instant one, involves an...