Voegeli's Estate, In re

• Decision Date: 16 February 1959
• Citation: 108 Ohio App. 371,161 N.E.2d 778
• Parties: , 9 O.O.2d 340 In re ESTATE of VOEGELI. *
• Court: Ohio Court of Appeals

Page 371

108 Ohio App. 371

161 N.E.2d 778, 9 O.O.2d 340

In re ESTATE of VOEGELI. ^*

Court of Appeals of Ohio, Lueas County.

Feb. 16, 1959.

Syllabus by the Court.

1. The provisions of Section 1105.09, Revised Code, constitute legislative recognition of the right to make a deposit in a bank in the names of two or more persons, payable to either or the survivor, and such a deposit or any part thereof becomes payable to either of such persons during life, and, upon death of one, to the survivor.

2. The ownership of the funds in a joint and survivorship bank account, upon death of one of the parties thereto, passes to the survivor by virtue of the contract of deposit, not as an incident to joint tenancy or necessarily upon the principle of survivorship alone.

3. A joint and survivorship bank account does not have the attributes of a testamentary disposition.

4. The signature of a codepositor is not essential to the creation of a valid joint and survivorship bank account. Rhorbacker v. Citizens Bldg. Ass'n Co., 138 Ohio St. 273, 34 N.E.2d 751, 135 A.L.R. 988; In re Estate of DiSanto, 142 Ohio St. 223, 51 N.E.2d 639.

5. Since a joint and survivorship account possesses some of the characteristics of a third party beneficiary contract, consideration passing between the depositor and the codepositor is not necessary, and full assent to the contract by such surviving codepositor may be presumed, the contract being one of advantage without burden.

6. Delivery, which must accompany an ordinary gift such as is requisite in the so-called passbook cases, is rendered unnecessary in the case of a joint and survivorship account because the execution of the joint deposit contract between the depositor and the bank supplies the essentials of a completed gift.

7. Where money is deposited in a joint and survivorship account, during the lives of the depositors, the form of the contract of deposit is not conclusive upon the subject of joint ownership thereof and evidence may be introduced that the deposit was in truth made and maintained on a different basis (Union Properties, Inc. v. Cleveland Trust Co., 152 Ohio St. 430, 89 N.E.2d 638), but, after death of one of the depositors, in a proceeding brought by the survivor (in the absence of fraud, etc.), oral testimony to contradict the clear and unambiguous written expression of intention on the part of the deceased depositor in the contract of deposit is incompetent. Sage v. Flueck, 132 Ohio St. 377, 7 N.E.2d 802.

8. Notwithstanding the evidence may tend to show a retention of complete control of a joint and survivorship account by the person making such deposit during his life, such evidence does not contradict or overcome the clear and unambiguous intention of such depositor expressed in his contract of deposit to create a vested survivorship interest in praesenti in the codepositor which will inure and pass to the survivor upon death of such depositor.

Ray & Diller, Toledo, for appellants.

Swartzbaugh, Moor & Longthorne, Toledo, for appellee.

FESS, Presiding Judge.

This is an appeal on questions of law from an order of the Probate Court overruling exceptions to the inventory of the estate and holding that six deposit accounts in the Home Building and Savings Company of Toledo, Ohio, were not joint and survivorship accounts and were therefore properly included in the inventory as assets of the estate.

Emil Voegeli died intestate on August 1, 1958, leaving Emily Voegeli his surviving spouse and six children by a prior marriage, all adults except Sandra Helen Voegeli, fifteen years of age. Emil and Emily Voegeli were married on August 9, 1952, and the accounts in question were opened by the decedent after such marriage. ¹ Emil Voegeli, for some years prior to his decease, had served as a director of the institution. Upon separate exceptions filed on behalf of the minor child, her account, by consent of counsel for the administratrix made in open court, was stricken from the inventory. Except as indicated in the footnote, the remaining accounts involved in this appeal were each opened by the decedent, who signed cards furnished by the bank, each having the same printed form and identical provisions as follows 'Name (name of child) or Emil Voegeli or survivor

'We, the undersigned, do hereby severally agree to be governed and bound by the Constitution, Bylaws, Rules and Regulations of The Home Building and Savings Company of Toledo, Ohio, now in force or that may hereinafter be in force.

'We further agree that this pass book No. ..... in The Home Building and Savings Company of Toledo, Ohio, and any earnings thereon is the joint property of the undersigned and shall so remain during our joint lives and may be withdrawn at any time by any one or more either of us and upon the death of one or more of the undersigned the deposit and all accrued earnings thereon shall absolutely and unqualifiedly become the separate property of the survivor or survivors of us the same as if all the deposit was originally made by the survivor or survivors, free from any right, title or claim of the heirs, legatees, legal or personal representatives and creditors of the deceased and the right and title of the survivor or survivors of us thereto shall not be affected by the pass book being in the possession of the deceased or another at the time of said decease. Our intentions expressed herein can not be varied by any declarations either verbal or written to the contrary. Any withdrawals shall be a valid acquittance of the company. Interest rate to be determined semi-annually by the board of directors of said company.

'Toledo, Ohio ..... (19..).

........

........

'Joint and Survivorship Account'

At his death, the passbooks for the accounts were found in the decedent's safe, which had to be forcibly opened with a blow torch.

The several accounts involved in this appeal are:

1. Account No. 42124 in the Home Building and Savings Company, joint and survivorship account in the name of Marylynn Voegeli or Emil Voegeli or survivor in the amount of $13,527.93, dated December 1, 1952.

2. Account No. GE296 in the Home Building and Savings Company, joint and survivorship account in the name of Emil Voegeli or William Voegeli or survivor in the amount of $22,398.09, dated December 19, 1956.

3. Account No. 59494 in the Home Building and Savings Company, joint and survivorship account in the name of Donald E. Voegeli or Emil Voegeli or survivor in the amount of $7,806.59, dated February 20, 1953.

4. Account No. 59495 in the Home Building and Savings Company, joint and survivorship account in the name of Frederick J. Voegeli or Emil Voegeli or survivor in the amount of $7,806.69, dated February 20, 1953.

5. Account No. 59496 in the Home Building and Savings Company, joint and survivorship account in the name of William T. Voegeli or Emil Voegeli or survivor in the amount of $7,806.69, dated February 20, 1953.

6. Account No. 59497 in the Home Building and Savings Company, joint and survivorship account in the name of Barbara Voegeli Peltier or Emil Voegeli or survivor in the amount of $7,806.69, dated February 20, 1953.

Account No. GE296 was opened at a branch office of the company. The others were made at the main office.

The signature card on account No. GE296 was signed by Emil Voegeli and William T. Voegeli, and the card on account No. 42124 was signed by Emil Voegeli and Marylynn Voegeli. The cards on the other four accounts bear only the signature of Emil Voegeli. The ledger sheets, as well as the passbooks, of these four accounts, having balances of $7,806.69, each disclose identical deposits from February 20, 1953, to June 30, 1958, with no withdrawals.

Upon the ledger sheet of the Sandra Voegeli account appears the following in capital letters:

'GIVE OUT NO INFORMATION TO ANYONE EXCEPT NO WITHDRAWALS WITHOUT PASSBOOK--EMIL VOEGELI.'

Upon the Marylynn Voegeli ledger sheet appears:

'Give out no information to anyone except Emil Voegeli.'

Upon the ledger sheet of the William Voegeli account No. GE296 (opened December 19, 1956) appears no similar legend. The sheet discloses a withdrawal of $10,000 from this account by Emil Voegeli on August 12, 1957.

The ledger sheets of the four identical accounts bear the following legend: 'Give out no information to anyone except Emil Voegeli.' Inferentially, the legends were placed upon the sheets by direction of the decedent. An officer of the bank called as a witness for the administratrix had no knowledge of the source of the appearance of the legends on the ledger sheets. An employee of the bank who dealt directly with the decedent at the time several of the accounts were opened was not called to testify. The evidence fails to show whether the legends were placed on the sheets concurrent with the opening of the accounts or thereafter, and there is no evidence tending to show that the instructions were made with the knowledge or consent of the children. An officer of the bank testified that frequently a joint and survivorship account is opened by the depositor signing the card and the codepositor signs at a later date and that the bank recognizes the account as joint and survivorship prior to its signing by the codepositor, but does not permit withdrawal by the latter until after he has signed the card. The officer also stated that, except under unusual circumstances where the amount is small and the depositor well known, no withdrawals are permitted without presentation of the passbook. The rules and regulations of the company were not introduced.

The inventory and appraisement of the gross estate amounts to $293,752.21, including the seven joint and survivorship accounts totalling $82,895.09. The six accounts involved in this appeal total $67,152.68. In addition to holding shares of the company appraised at $20,000, the decedent had four other savings accounts in the company, presumably not joint, totalling $46,343.03.

The status of a...