
    Court of Common Pleas for Franklin County.
    Buckeye State Building & Loan Co. v. Fridley, Admr.
    Decided December 15, 1930.
    
      Wilson & Rector, for plaintiff.
    
      Guy V. Fridley, for administrator of John D. Heller, deceased.
    
      F. M. Mecartney, for administrator of Fannie L. Sheppard, deceased.
   Leach, J.

The plaintiff filed this action setting forth that it was in possession of $12,000 .under the following agreement:

“Columbus, Ohio, February 28, 1923.
To the Buckeye State Building and Loan Company:
The undersigned hereby open an account with your company in the name of J. D. Heller and Fannie L. Sheppard.
All money deposited with your company in such name whether on pass book or certificate of deposit, or on running stock or paid up stock, shall be the joint account of the undersigned. You are hereby authorized and directed to pay all or part of such account on the order of any one or more of the undersigned, and such you shall do, notwithstanding the death or incapacity of the undersigned.
(Signed) J. D. Heller,
Fannie L. Sheppard.”

On October 7, 1930, the said J. D. Heller died intestate. On November 4, 1930, the said Fannie L. Sheppard died intestate. Neither of said parties, prior to their respective deaths, exercised any right to have any part of said amounts paid to them or either of them.

Plaintiff, the Buckeye State Building & Loan Company, asked that the defendants be required to interplead, which they have done, the administrator of the estate of Fannie L. Sheppard, by filing an answer setting forth the same facts as are found in the petition and certain other facts in addition thereto. The administrator of Fannie L. Sheppard claims that the full amount should be paid to him. The administrator of John D. Heller files an answer and sets up that Fannie L. Sheppard did not, during her life time, have joint deposits or certificates of deposit transferred to her name and withdraw said deposit or any part thereof as said survivor nor appropriate said joint certificates and deposits to herself, and prays that one-half of said amount be adjudged to belong to the estate of John D. Heller.

The $12,000 in question, pursuant to an order of this court, has been paid to the clerk.

The matter is now submitted finally upon an agreed statement of facts and briefs of counsel. The agreed statement of facts sets forth, not only the facts averred in the petition, but also that some time in June, 1910, John D. Heller, being then a widower and without a housekeeper, contracted with his niece, Fannie L. Sheppard, then known as Fannie L. Martin, and living at Hagerstown, Maryland, to come to Ohio and make a home for him taking care of his household and of him in his old age; that no wages were to be paid, but that on his death he would give her all the property he might own at that time; that Fannie L. Sheppard accepted said offer, came to Ohio and took care of said Heller’s home, said Heller being her uncle, nursing him in his last sickness and attending to some of his smaller business affairs until the time of his death, October 7, 1930, at which time he was over eighty years of age. That in pursuance of said agreement Heller made a will in which he carried out the agreement above set forth between himself and his said niece; that some time later, January 2, 1923, upon the advice of certain friends and officials Of the Buckeye State Building & Loan Company, he with said niece deposited the money, part of which was the result of the sale of the real estate in which they had both been residing, and part of which belonged to said niece, in the Buckeye State Building & Loan Company on a .joint certificate of deposit, and subsequently said will was destroyed, both Heller and his niece having been advised and believing that the joint deposit would take the place of the will, and that either could draw said account at any time during the lifetime of either or after the death of either. It so happened that at. the time of the death of Heller, said Fannie L. Sheppard was sick and unable to attend his funeral or leave her bed, but expected to get better and draw said joint deposit and certificates of deposit as soon as she was able to present said certificates and pass book of said Building & Loan Company, but contrary to her expectation she was never able to regain her health and died on November 4, 1930, without having transferred the joint deposit to her name or having drawn any of the moneys deposited in the said Building & Loan Association, as the survivor of her deceased uncle, John D. Heller. The deposits were made by Fannie L. Sheppard, herself, and part of the deposits were her own money, but it is not known what part represented her personal contribution thereto except $900 deposited at the time the first certificate was executed to John D. Heller or Fannie L. Sheppard, January 2, 1923.

It was held in the Cleveland Trust Company et al. v. Scobie, Admr., 114 Ohio St., 241, that:

“Where a person opens a saving account in a bank to the joint credit of himself and another, payable to either, and balance at death of either payable to survivor, the authority to remain in full force until receipt by the bank from the depositor of written notice of its revocation, and the record shows that the depositor intended to transfer to the person to whom he made the account jointly payable a present joint interest therein equal to his own, and the pass book has been left in the possession of the bank for withdrawals by either party on the joint account, a joint interest is created in the right of the depositor in the deposit, and the person to whom the deposit is made payable jointly with the depositor, upon the death of the depositor, without his having revoked the authority to draw, is entitled to the balance of the account.”

It is conceded by the attorney for the administrator of John D. Heller, deceased, that pursuant to the agreement in question and under the authority of the Scobie case, “Mrs. Sheppard could have withdrawn all the money in the joint deposit of herself and J. D. Heller after the death of J. D. Heller” but it is contended that the situation is changed by reason of the fact that she did not withdraw the money or make any order for the withdrawal of the same; that under these circumstances the matter was rather in the nature of a gift causa mortis, and that the gift is not complete until it is accepted by the donee, and that the gift of the undivided one-half interest was never accepted by Mrs. Sheppard, the donee. We think that this matter is disposed of by certain of the language of the opinion in the case of Tax Commission v. Hutchison,, 120 Ohio St., 361. The court, in commenting upon the Scobie case, said it was there held:

“That a present joint interest in bank deposits might be created, and that the entire balance at death would, under the survivorship clause, pass to the survivor.’’

The court also quoted with approval from the case of Marble v. Treasurer and Receiver General, 245 Mass., 504, and adopted the following paragraph found in the opinion in that case:

“By reason of the death of Marble, Mrs. Marble alone now has an interest in these deposits arising on accruing by her survivorship, which she did not have before. That beneficial interest is to absolute title to the deposit, free from the pre-existing right, absolute in its terms, which Marble undoubtedly possessed during his life to withdraw the whole or any part of these deposits on his individual receipt and to dispose of the money on his individual account. These deposits vested in the complete possession and enjoyment of Mrs. Marble on the deeáth of her husband.”

And again on page 368 of the opinion Judge Day uses this language:

“We think that, where the right to absorb the whole fund was in either Hutchison or his wife at any time prior to his death, it must be the time of such death that measures the right of the survivor, as it was entirely problematical whether there would be any fund subject to succession until after one of the joint owners had died. The time of death of one measures the rights of the other in the property in question.”

It will be noted that the Supreme Court approves the proposition that the beneficial interest of the survivor “is to absolute title to the deposit.” Now, if at the time of the death of John D. Heller there was vested in Fannie L. Sheppard an absolute title to the deposit there is no reason why this title should be divested upon the death of the said Fannie L. Sheppard. It would seem that it then, upon the death of Heller, became her property and became a part of her estate upon her death to which her administrator, Edward C. Sheppard, is entitled as her representative. Such will be the ruling of the court and the finding and decree will be for Edward C. Sheppard, as administrator of this estate of Fannie L. Sheppard, deceased, as prayed for in his answer.

Exceptions.  