Vetter v. Hampton

• Decision Date: 10 May 1978
• Docket Number: No. 77-435,77-435
• Citation: 375 N.E.2d 804,54 Ohio St.2d 227
• Parties: , 8 O.O.3d 198 VETTER, Exr., Appellee, v. HAMPTON, Appellant.
• Court: Ohio Supreme Court

Page 227

54 Ohio St.2d 227

375 N.E.2d 804, 8 O.O.3d 198

VETTER, Exr., Appellee, v. HAMPTON, Appellant.

No. 77-435.

Supreme Court of Ohio.

May 10, 1978.

Syllabus by the Court

1. The testimony of a physician as to the issue of an individual's competency is not dispositive of that issue as a matter of law.

2. The rights of parties to a joint and survivorship bank account are governed by the contract and not by the principles of the law of gifts.

3. The existence of a joint and survivorship bank account raises a rebuttable presumption that co-owners of the account share equally in the ownership of the funds on deposit. (In re Estate of Duiguid, 24 Ohio St.2d 137, 265 N.E.2d 287, and Steinhauser v. Repko, 30 Ohio St.2d 262, 285 N.E.2d 55, approved and followed.)

4. 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, when a controversy arises as to the ownership of such an account, the party contending that no valid joint and survivorship contract was created may present evidence to show the "realities of ownership." (Union Properties, Inc. v. Cleveland Trust Co., 152 Ohio St. 430, 89 N.E.2d 638; Fecteau v. Cleveland Trust Co., 171 Ohio St. 121, 167 N.E.2d 890; Steinhauser v. Repko, 30 Ohio St.2d 262, 285 N.E.2d 55.)

5. A party contending that no valid joint and survivorship contract was created by asserting "realities of ownership" must show either that no present interest was created or that no right of survivorship was intended.

6. The party seeking to uphold the joint and survivorship contract is benefited by a presumption that both parties to the contract are rebuttably presumed to share equally in the funds on deposit.

Plaintiff-appellee, David A. Vetter, Executor of the Estate of Clara V. Lowe, filed a declaratory judgment action in the Probate Division of the Court of Common Pleas of Scioto County against defendant-appellant, Gladys M. Hampton, to determine the ownership of a joint and survivorship savings account.

Clara V. Lowe and Gladys M. Hampton were sisters, and the account was established after the death of Clara's husband in 1968. While Clara was hospitalized before her death, Gladys took the passbook from Clara's home, withdrew the balance of the account, $37,739.68, and deposited the funds in an account in her name. The funds were withdrawn in August 1969, and Clara died in December 1969.

The trial court found that "all the funds placed in the savings account belonged to Clara V. Lowe" and that the evidence failed "to prove either that a different type of account was established or that Gladys M. Hampton was merely to have the right and privilege to withdraw from said funds * * * for the sole benefit of the decedent, Clara V. Lowe." It was found further that "although the evidence was conflicting, plaintiff failed to establish that * * * (Clara V. Lowe) was incompetent * * *."

After concluding that decedent was not incompetent at the time of the creation of the account, the trial court considered the issue whether decedent was under influence or duress. The court stated:

"Once again, plaintiff executor fails to maintain the burden of proof. This court subscribes to the proposition that upon finding of sufficient proof, the realities of ownership must prevail over the form of the joint and survivorship card. * * * However, absent the prevailing evidence, the contractural (sic ) arrangement will be upheld. Such is the instant case. Considerable reliance is placed by plaintiff on the bank witness * * * whose recollection though obviously truthful was based more upon the usual procedure that would have been used rather than personal recollection. The signature cards were merely suggestive to her what the circumstances must have been. Her testimony and other evidence taken altogether does not establish the required proof of undue influence exerted over Clara V. Lowe. Neither does plaintiff's claim that the record is silent as to declarations by Clara V. Lowe to create a joint and survivorship account. Plaintiff executor has the burden of proof. It is not carried by a silent record."

The trial court determined that the joint and survivorship account was not an asset of the estate of Clara V. Lowe.

Upon appeal, the Court of Appeals reversed the judgment of the trial court and rendered final judgment for plaintiff.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Kimble, Schapiro, Stevens, Harcha, Young, Clark, Laurence M. Kimble, Howard H. Harcha, Jr., and J. Alden Staker, Portsmouth, for appellee.

Rudd, Silverberg & Zaharieff Co., L. P. A., J. Gordon Rudd, Eric Silverberg and Ravid A. Orlins, Xenia, for appellant.

C. WILLIAM O'NEILL, Chief Justice.

In her propositions of law, appellant contends that: (1) "A physician's testimony cannot as a matter of law be dispositive of the issue of an individual's competency * * * when the trier of fact has found that physician's credibility to be strained, and there is probative evidence to rebut the physician's conclusion"; (2) "(t)he trial court's findings on competency and undue influence were not against the manifest weight of the evidence"; and (3) "(a) joint and survivorship account is an intervivos contract and its validity is based upon contract law, not gift law; consequently, there is no requirement that such a res be delivered from donor to donee."

The first two propositions of law raise a legal issue with respect to the weight to be given the testimony of the physician on the question of the competency of Clara V. Lowe at the time the joint and survivorship account was created.

The trial court found that the evidence failed to establish that Clara V. Lowe was incompetent. In reaching that conclusion, the trial court stated that "the basis of his opinion (the physician's) was rather meager including her refusal to follow his medical advice." The trial court then alluded to other evidence showing that Clara V. Lowe had executed a will, conveyed real estate and that she had conducted "considerable business prior to and after the establishment of the joint and survivorship savings account * * *."

The majority of the Court of Appeals concluded that the physician's testimony that Clara V. Lowe was not capable of managing her affairs was dispositive of the issue of competency "as a matter of law."

The testimony of a physician as to mental competency is not necessarily conclusive on that question "as a matter of law." "It is not doubted that the opinions of physicians touching questions of mental strength or weakness are competent to be given in evidence in cases where those matters are in issue. The weight to be given the evidence in a particular case is to be determined by the jury, as the testimony of witnesses touching any other matter should be determined." Bahl v. Byal (1914), 90 Ohio St. 129, 135, 106 N.E. 766, 768; Annotation, 86 A.L.R.2d 1038, 1044. Thus the trial court here, as the trier of fact, was not bound to give conclusive effect to the testimony of the physician.

The third proposition of law challenges the conclusion of the majority of the Court of Appeals that the fact that there was "no delivery" militated against a finding that a gift was intended. The rights of parties to a joint and survivorship bank account in Ohio are governed by the contract and not by the principles of the law of gifts. Cleveland Trust Co. v. Scobie (1926),114 Ohio St. 241, 151 N.E. 373. See Steinhauser v. Repko (1972) 30 Ohio St.2d 262, 285 N.E.2d 55. Thus there is no requirement of delivery.

The creation of a joint and survivorship bank account raises a rebuttable presumption " * * * that coowners of the account share equally in the ownership of the funds on deposit * * *." In re Estate of Duiguid (1970), 24 Ohio St.2d 137, 265 N.E.2d 287. Nonetheless, " * * * it is always open to the party contending that no valid joint and survivorship contract was created to show the 'realities of ownership.' Union Properties v. Cleveland Trust Co. (1949), 152 Ohio St. 430, 89 N.E.2d 638; Facteau v. Cleveland Trust Co. (1960), 171 Ohio St. 121, 167 N.E.2d 890. * * *...