Ruffalo v. Savage

• Decision Date: 17 February 1948
• Parties: RUFFALO et al. v. SAVAGE et al.
• Court: Wisconsin Supreme Court

252 Wis. 175

31 N.W.2d 175

RUFFALO et al.

v.SAVAGE et al.

Supreme Court of Wisconsin.

Feb. 17, 1948.

Appeal from a judgment of the Circuit Court for Kenosha County; Alfred L. Drury, Judge.

Affirmed.

Sam Ruffalo and Louise Ruffalo, plaintiffs and respondents, bring this action against Thomas K. Savage, administrator of the estate of Bennie Ruffalo, deceased, and The First National Bank of Kenosha, defendants, to determine the ownership of the proceeds of a savings account in The First National Bank of Kenosha. The action was commenced November 22, 1946. From a judgment establishing ownership in plaintiffs, defendant Thomas K. Savage, administrator of the estate of Bennie Ruffalo, deceased, appeals.

Sam Ruffalo and Louise Ruffalo, parents of Bennie Ruffalo, opened a savings account in The First National Bank of Kenosha, Wisconsin, in the name of Bennie Ruffalo on November 8, 1934, with a deposit of $20 made by a daughter at the direction of plaintiffs. This daughter at that time signed the name of Bennie Ruffalo to the signature card. The parents continue to make deposits of various amounts as suited their convenience until July 3, 1945, at which time there was a balance in the savings account amounting to $4,196.73. When the first passbook was filled with entries a new passbook was issued and the balance carried forward into another book. The number of deposits and entries made required the issuance of three passbooks covering this account. The passbooks were retained in the possession of the plaintiffs at all times with the exception of six occasions when withdrawals from the account were made by Bennie Ruffalo. On those occasions the passbook was delivered to Bennie Ruffalo by the mother with instructions or authorization to withdraw a particular amount, and the passbook was immediately returned after each withdrawal. The rules and regulations of the bank provided that a savings account is not subject to check and the passbook must be presented when each deposit or withdrawal is made. The dates and amounts of withdrawals are as follows:

+--------------------------+
                ¦August 11, 1937   ¦$250.00¦
                +------------------+-------¦
                ¦November 19, 1940 ¦30.00  ¦
                +------------------+-------¦
                ¦January 1, 1941   ¦25.00  ¦
                +------------------+-------¦
                ¦February 4, 1941  ¦25.00  ¦
                +------------------+-------¦
                ¦February 18, 1941 ¦30.00  ¦
                +------------------+-------¦
                ¦June 16, 1941     ¦40.00  ¦
                +--------------------------+
                

Bennie Ruffalo entered military service June 24, 1941, and March 29, 1944, he married while home on furlough. Thereafter, on July 5, 1944, he opened an account in The First National Bank of Kenosha with an initial deposit of $500 in the joint names of himself and his wife. He was declared missing in action since September 10, 1944, and death is presumed to have occurred September 11, 1945, according to an official statement furnished to respondents October 25, 1946. Decedent left a wife and child surviving him.

Baker, Juliani & Baker and Thomas K. Savage, all of Kenosha, for appellant.

Cavanagh, Stephenson, Mittelstaed & Sheldon, of Kenosha, for respondents.

BARLOW, Justice.

The facts are not in dispute. The question for decision is whether the parents, who made the deposits from their own money, or the estate of the deceased son has legal title to the proceeds of this saving account. Appellant contends that when the parents deposited the money in the name of the decedent title immediately vested in him, relying on Estate of Staver, 1935, 218 Wis. 114, 260 N.W. 655. He further argues that if delivery of the passbooks was necessary this was complied with when the mother gave the passbooks to the son to make withdrawals as heretofore set forth. The trial court found the respondents at all times intended to reserve to themselves the ownership and control of the account until such time as they elected to complete a gift to the son of the amount on deposit.

In the Staver case the certificates of deposit in issue were all made payable to the order of Joseph Staver or Frank J. Staver, the funds so deposited being the funds of Joseph Staver. The court held this was a joint deposit and upon the death of Joseph Staver the title to the certificates passed to Frank J. Staver as survivor and the estate had no right or interest in them. By the terms of the deposits each party had an interest in the certificates and the delivery of the certificates by the bank to either party was a delivery to both parties.

Respondents contend that when these deposits were made they had a right to reserve to themselves the ownership and control of this account even though they made them in the name of the son, with the right to make a gift at such time as they saw fit; that in order to complete a gift it was necessary for respondents to deliver the passbooks to the son voluntarily for the purpose of completing the gift; that this was never done and there being no completed gift the title still remains in respondents.

There is a difference between a joint ownership of a res by contract and a gift of a singly-owned res. In Estate of Krause, 1942, 241 Wis. 41, 4 N.W.2d 122 deceased withdrew funds from his personal savings account and deposited them in a savings account in the name of his wife, and later withdrew them on his own signature. The wife started an action against the bank to recover the funds after the death of her husband. While the case was before the court on the question of admissibility of evidence, in its decision the court said 241 Wis. p. 44,4 N.W.2d 124: ‘If the appellant had succeeded in establishing the fact that she was in possession of the passbook No. 11177 during the lifetime of her...