
    Common Pleas Court for Montgomery County.
    Sardone v. Dayton Building & Savings Association. Murphy, Admr., v. Sardone et al.
    
    Decided September 13, 1930.
    
      Murphy & Murphy and Charles C. Ginoechio, for Administrator of the Estate of Joseph Antonio.
    
      Paul J. Wortman, Roland W. Baggott, Joseph N. Bernabei and Carl A. Feist, for James Sardone.
    
      A. C. McDonald, for Dayton Building & Savings Association.
    
      
       Affirmed by the Court of Appeals February 21, 1931.
    
   Snediker, J.

These cases are before the court for determination as to whether the administrator of Joseph Antonino, or James Sardone is entitled to the sum of $8,573.53 on deposit in a running stock account in the Dayton Building & Savings Association. Case No. 67281 was instituted on December 31, 1929. Case No. 67293 was commenced on January 2, 1930. By an entry these cases were consolidated on March 11, 1930, and after such consolidation were subsequently submitted to the court on the pleadings, the evidence, and the briefs of counsel, which were finally completed on August 21st of this year.

The facts are these: Joseph Antonino, born in Italy and resident here, was killed on September 30, 1929, in an accident on a railroad near East Second street in this city. James Sardone, living at Akron, Ohio, was his cousin. Joseph Antonino during his lifetime, and beginning on July 7, 1921, opened a running stock account with the Dayton Building and Savings Association. His first payment was $700. Up to July 13, 1928, less withdrawals and including interest, his balance showed a total of $5,696.91. On November 24, 1927, Antonino went hunting with Charles Catalano, and while they were out he accidentally shot Catalano in his right foot. On July 11, 1928, Catalano commenced an action against him for the recovery of damages in the sum of $5,947.50 on account of his injury, which he alleged, was caused by Antonino’s negligence. Two days afterwards, Antonino appeared at the office of the Dayton Building and Savings Association, and in a conversation with Miss Sieber, one of the assistant secretaries thereof, stated that he had accidentally shot some fellow in the foot while hunting, and asked her to transfer his account into a new one in the name of James Sardone. This she did, and the number of the account was changed from 5408 to 19838. On that same day Antonino deposited an additional $2,700 in the new account, and made a subsequent deposit on May 17, 1929, -of $100. He withdrew, and was allowed to withdraw, on April 1, 1929, $76.13, and on April 5, 1929, $50. At the time of his death the total balance in account No. 19838 was $8,850. Antonino retained possession of the passbook and continued to retain it until the time of his death, when it was found in his room by the coroner. There is testimony in the case by James Sardone that on July 28, 1929, Antonino gave the pass book to him, and that on that occasion he returned it, asking Antonino to keep it for him. This evidence is uncorroborated, and other facts in the case so detract from its credibility that we' do not seriously regard it. The usual identification cards were made out for account No. 19838 by the Dayton Building and Savings Association. The first card was dated July 13, 1928, and was in the name of Jim Sardone, with a notation “Joseph Antonio (his account).” The Joseph Antonio referred to is this decedent. This card also stated: “In case of death to Jim Sardone.” The second card was dated May 20, 1929, and was in the name of Vincenzo Sardone. Vincenzo Sardone is the James Sardone referred to on the other card.. On this card is inscribed “joint account.” Both of these cards were made out by Miss Sieber, the assistant secretary. Her testimony is that the statements: “In case of death to Jim Sardone,” and “joint account” were placed by her on these cards, the first because she had an understanding from a statement made by Antonino that- if he died he wanted the money to go to his counsin, James Sardone: ‘joint account,’ she says, was placed on the other card at her own instance, so that either one could draw the money without any particular consent to do so having been given by the other, or at the death of one the balance could be paid to the survivor. Miss Sieber also testified that the notation on the card of July 13, 1928, “No information,” was made because of Antonino’s expressed purpose in transferring the account from himself to Sardone. After Antonino died, and on . October 4, 1929, Sardone was per.mitted to withdraw from the account $100. There was also withdrawn and paid to the administrator of Antonino’s estate the sum of $450.

Decedent had relatives in Italy. The testimony indicates that some one or more of these were not regarded very highly by him. He had been away from that country for a long time and had virtually lost his connection with that part of his family. He knew and frequently met and associated with the two Sardone boys, one of whom is the James Sardone making claim to the account, and the other is Jim Sardone, living at Canton, Ohio, and who was a witness at the hearing.

The account in the name of Antonino, and afterwards in the name of Sardone, was from the beginning “subject to the by-laws, rules and regulations of the association.” One of these rules is No. 3, which reads as follows:

“All running stock deposits shall be entered not only upon the books of the association, but also upon a passbook to be given to each depositor, in which every deposit shall be entered by some officer or employee of the association, and such entry upon such pass book shall be evidence of such deposit. Payments will be made upon presentation of such pass book by the depositor therein or other person holding such pass book by assignment or duly authorized by written order of the depositor.”

In the books containing these accounts were blank printed assignments to be used for the purpose of transferring the accounts from the depositor to another. These assignments were never executed, and there is no evidence in the case that any other assignment or written order was at any time presented to the building association for the purpose of having these accounts transferred from Joseph Antonino to James Sardone. Without such assignment, the book containing the running stock account having been found among the effects of Joseph Antonino in the room occupied by him before his sudden death, and the purpose of the transferring of the account having been so definitely expressed by him at the time it was made, there must be some other evidence in the case to justify a finding of a change of ownership of fhe account from Antonino to Sardone.

We do not find here anything that would warrant us in saying -that a gift causa mortis was attempted by Antonino. The characteristics of such a gift are not contained in this evidence. A gift causa mortis must be in contemplation of the near approach of death from present illness or apprehended peril, and the fear of peril must be something more certain than vague apprehension. Again, the donor must die of some present sickness or peril. If he recover, the gift is revoked. Also, the intent must be that the gift shall take effect upon the death of the donor. Further, there must be a delivery by the donor or by someone at his order to the donee or to some third person for the donee, and this delivery must generally be during the life of the donor, and the donee must accept.

'As to whether or not we have here any attempt at a gift inter vivos, we are to consider under the guidance of the following rule:

“In gifts inter vivos the rule is that the actual intention of the parties to the transaction is the main issue, and that whatever in the surrounding circumstances tends to throw light upon the intention should not be disregarded.”

This evidence discloses that Antonino did not intend to make a gift, but on the contrary intended to protect his own property, and that from the time the account was transferred to the name of James Sardone, Sardone simply acted as the alter ego of Joseph Antonino for the purpose stated, with the right in the latter to demand and receive the money deposited in account No. 19838, when at his desire or in his judgment it was proper or necessary for him to do so. The purpose of the opening of the new stock account is so plain, and the circumstances surrounding it are so in accord with that purpose, that we are able to find from a preponderance of the evidence that Antonino did not intend that during his life the money on deposit in the building association should be the absolute property of Sardone. Further, the circumstances testified to in this record do not indicate any different subsequent intention. Even the statement which was made to Miss Sieber, “that he wanted his cousin, Sardone, to have the money after he died” would not constitute a gift inter vivos. One of the facts in this case which is worthy of serious consideration is that when this plaintiff took charge of Antonino’s estate, he was only able to inventory $2,781.12. At that time the right to the stock account had not yet been adjudicated. A man of the limited means of Antonino would not, except under the most extraordinary conditions, give during his lifetime to a relative so distant as a cousin, $8,850. No such extraordinary conditions have been proven in this case, nor are we of the opinion that Antonino intended to give, or did give that amount to James Sardone in July of 1929, when Sardone claims he handed him the book.

An inspection of the identification cards discloses that on the back of each of them is what is known as “joint and survivorship agreement” blank and unsigned.

The case of Catalano against Antonino was settled and dismissed on March 12, 1929, but the relations of Antonino and Sardone were of such a character that the account in the building association was permitted to run along without any change of designation until Antonino died in September of that year. As far as we can learn from the record, they continued to be friendly, and there was no anticipation of unfriendliness. Whether there was any other reason why Antonino, permitted his funds to continue in Sardone’s name, we are not informed, but it is easy to understand how the few months that elapsed between the settlement of the Catalano case and the death of Antonino could under these peculiar circumstances pass by without anything being done as to this account.

Antonino was recognized as having an interest in this stock account by all parties concerned up to the time of his death. No attempt was made by Sardone to withdraw any part of the funds until after that event.

“No principle of law is more firmly established than that a gift inter vivos is not valid unless there is a delivery to the donee or to someone for him; unless the donor parts absolutely with all present and future dominion and right of control over it, and unless the gift is intended to take immediate effect, to be complete as a transfer of title in presentí, and is absolute and irrevocable.”

The fact that Antonino, although he expressed a desire that this running stock account should go to Sardone after his death, still showed an unwillingness to relinquish his control over the funds during his lifetime, negatives any intention to create a trust in favor of Sardone to take effect before his, Antonino’s, death. There was, then, no perfected gift to Sardone of either the legal or the equitable title to the stock account in the Dayton Building & Savings Association.

We are, therefore, of the opinion that the fund belongs to the estate of Joseph Antonino, and that plaintiff is entitled to the relief prayed for in the petition.  