Reder v. Reder

• Decision Date: 14 April 1924
• Docket Number: No. 15506.,15506.
• Citation: 312 Ill. 209,143 N.E. 418
• Parties: REDER v. REDER.
• Court: Illinois Supreme Court

312 Ill. 209

143 N.E. 418

REDER

v.REDER.

No. 15506.

Supreme Court of Illinois.

April 14, 1924.

Error to Second Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Proceedings by Joseph Rider against Emma Reder, administratrix of the estate of Peter Reder, deceased, for a citation to compel inventory. Petition dismissed. Judgment was affirmed on appeal to the circuit court and to the Appellate Court (228 Ill. App. 21), and petitioner brings error.

Affirmed.

Thompson, J., dissenting.

Eugene Huss and Victor E. Rehm, both of Chicago, for plaintiff in error.

Albert N. Charles and Joseph G. Sheldon, both of Chicago, for defendant in error.

CARTWRIGHT, J.

Peter Reder died intestate on February 5, 1918, and his widow, Emma Reder, was appointed administratrix of his estate. She filed an inventory, to which Joseph Reder objectedon the ground that she had omitted to inventory the amount of a savings deposit in the Central Trust Company of Illinois, and prayed for a citation against her to compel her to include that deposit in the inventory. The probate court of Cook county overruled the objection of Reder and dismissed the petition. He appealed to the circuit court of Cook county, with the same result, and on a further appeal to the Appellate Court for the First District the judgment was affirmed. This court allowed a writ of certiorari to the Appellate Court for a review of the judgment of that court.

There is no disputed question of fact. On April 27, 1914, Peter Reder had a savings deposit with the Central Trust Company of Illinois, and he then withdrew $5,000 from that account. He proposed to open a savings account in the joint names of himself and Emma Reder, his wife, and told the bank official that he wanted the account in such a way that he and his wife could use it at all times, no matter what happened, and that either one could draw it after the death of the other. Peter and his wife were present, and the savings account was opened, and the $5,000 deposited in their joint names, and the savings passbook issued by the bank bore the words stamped on it. ‘Payable to both or either.’ A signature card was also signed by Peter and Emma, reading as follows:

‘We hereby open our account with you and authorize and instruct you to honor the signature of both or either, or the survivor, in the withdrawal of the funds or any other transaction in connection with this account.’

Other deposits were made thereafter from time to time by each, and the original deposit was exhausted. At the death of Peter there was a balance in the joint account of $7,364.45, of which $1,006.40 was money of Emma, contributed to the joint deposit, and $6,358.05 was money of Peter. It was stipulated at the hearing that the original deposit of $5,000 was the property of Peter, and ‘that no gift of the same, or any part thereof, was made to Emma Reder during the lifetime of Peter Reder, other than by the agreement executed by the said Peter Reder at the time of opening said joint bank account, on April 27, 1914.’ The day after the death of Peter, Emma sent Adam Reder, a son of Peter and her stepson, to the bank with the savings bassbook and an order signed by her to draw $300. The bank paid the $300 and gave Adam a slip of paper to be signed, and the next day received the passbook and gave Adam a new book in the name of Emma for the amount of the deposit.

Counsel argue the question whether, as a matter of law, the original and subsequent deposits and the agreement made by Peter Reder and Emma Reder, his wife, created a joint tenancy with a right of survivorship, and the Appellate Court considered that question, but it is of no importance whatever. The joint right of ownership, with the right of both or either, or the survivor, to withdraw the deposit was the subject of contract. Any question of joint tenancy or tenancy in common is entirely outside the issue. The question to be determined is whether the contract is valid.

Peter Reder and Emma Reder each made deposits in the joint account, and their rights are not to be determined under the rules governing gifts inter vivos, although the judgment of the Appellate Court may be readily sustained on that ground. It is true that, in order that a deposit of money in a savings bank by one person to the credit of another shall operate as a gift inter vivos, it must be proved that the gift was completed by an act or acts sufficient to pass the title. Where a deposit is made and a certificate of deposit taken payable to another person, which is in the nature of a promissory note, and the depositor retains the certificate, title to the fund will not pass as a gift, in the absence of any declaration of trust or showing of intention to vest title. Telford v. Patton, 144 Ill. 611, 33 N. E. 1119. So if a person deposits money in a savings bank to the credit of another, and the rule of the bank requires that money shall not be paid except on presentation of the bank book, and the depositor retains the book and never delivers it, the gift is not complete, although a gift may be perfected without the delivery of the deposit book, where the depositor, in making the deposit, shows by his acts and declarations his intention to make a gift and divest himself of all dominion over the money. Ide v. Pierce, 134 Mass. 260; Burton v. Bridgeport Savings Bank, 52 Conn. 398, 52 Am. Rep. 602; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 840;Gardner v. Merritt, 32 Md. 78, 3 Am. Rep. 115. Where it is a mere gift, the title passes on evidence that the depositor made the deposit and delivered the deposit book to the donee. Sweeney v. Boston Five Cent Savings Bank, 116 Mass. 384.

[1] In this case both Peter and Emma Reder had possession of the book as each one made deposits which were entered in it, and if the case is treated as one of gift by each to the other the gift was complete. In case of a deposit in a savings bank in the...