
    Foraker, Exr., v. Kocks, Admx.
    
      (Decided November 27, 1931.)
    
      Mr. T. M. Potter, for plaintiff in error.
    
      Messrs. Page é Hartley, for defendant in error.
   Lemert, J.

The question at issue in this case, as will be seen by the statement in the pleadings, was the ownership of certain funds and property claimed both by W. D. Foraker, as executor of Bernard Noon, and by Ann Kocks, as administratrix of Catherine Noon.

Plaintiff in error, W. D. Foraker, as executor of Bernard Noon, deceased, was the defendant in the court of common pleas. Defendant in error, Ann Kocks, the administratrix of Catherine Noon, was the plaintiff. Bernard Noon, defendant’s decedent, and Catherine Noon, plaintiff’s decedent, were husband and wife. Catherine Noon died intestate August 10, 1927; Bernard Noon, the husband, died testate a little later, to wit, on February 22, 1928.

On March 26, 1930, plaintiff filed her petition in the court of common pleas of Perry county, Ohio, against the defendant, claiming ownership of a half interest in a savings account of $7,052.65, with interest thereon, and ownership of a half interest in a $500 government bond and certain household goods, charging that defendant had unlawfully converted and disposed of the same by declaring them to be assets of the estate of Bernard Noon, and so listing and inventorying them; that a claim therefor, amounting to $3,869.82, had been presented to said defendant and rejected, and praying for the amount above named, with interest.

The answer admitted the respective capacities of the respective parties, that 'Catherine Noon died intestate August 10, 1927, and that a claim in above amount was presented and rejected. The answer then averred that the decedent, Bernard Noon, and plaintiff’s decedent, Catherine Noon, were husband and wife; that Bernard Noon survived his wife, and thereafter, to wit, on February 22,1928, died testate; that he caused an inventory of the assets of the estate of said Bernard Noon to be duly made and filed in the probate court of Perry county, Ohio, and that said inventory does not contain therein any property belonging to said Catherine Noon; that each and every item therein listed is the property of said Bernard Noon; and, further answering, denied all the allegations of the petition not admitted or otherwise answered.

Upon the issues thus made the case went to trial before the common pleas judge, a jury being waived, and a finding and judgment were made in favor of Ann Kocks, administratrix, the plaintiff below, defendant in error herein. Motion for new trial was duly made, overruled, and exceptions taken. Plaintiff in error claims that the finding and judgment of the court of common pleas is contrary to law, is against the manifest weight of the evidence, that it should have been given for defendant below, and that the court erred in not granting a new trial.

The decedents of the parties herein, Bernard Noon and Catherine Noon, were husband and wife. Prior to the death of Mrs. Noon they had been married more than twenty years. No children were born of this marriage. Mrs. Noon had been previously married, and there were three children to said former marriage; the defendant in error, Ann Kocks, being one of them. At the time of said marriage, Bernard Noon owned a house in Corning, Ohio, and the parties at all times resided there; Catherine Noon, the wife, performing the usual household duties incident to housekeeping. At the time of her marriage, Catherine Noon had a lot in Columbus, Ohio, and this was retained by her at the time of her death.

After the death of Bernard Noon, his executor duly made an inventory of his effects, finding in a checking account in the bank of Corning in the name of Bernard Noon the sum of $7,052.65. Bernard Noon had a lock box in his name at said bank, and in this was found a $500 coupon bond. No other assets excepting household goods were found. No claim, however, is made by either of the parties in this case to the right of ownership in the household goods. No inventory was ever taken by defendant in error of any estate of Catherine Noon.

It appears from the record that on January 28, 1918, a certificate of deposit was issued by said Bank of Corning, Ohio, to said decedents, in the following form:

“No. 18451. Corning, Perry Co., Ohio, Jan. 18, 1918.
“Bernard or Catherine Noon or either of them has deposited with the Bank of Corning Company Eleven Hundred & 00/100 Dollars, payable to the order of either on return of this certificate six months after date with interest at the rate of three per cent per annum. Interest ceases at maturity.
“John M. Sweeney,
“Cashier.”

This certificate at the end of six months was presented, paid, and a new certificate issued for a larger amount, and thence, from time to time, the outstanding certificate (there was only one outstanding at a time), was turned in, canceled, and a new one issued. These certificates were practically identical in form; the only exception being the amount, the amount usually increasing upon each renewal. As each certificate was turned in and can.celed, it was endorsed; sometimes by both parties; sometimes by Catherine Noon only; and sometimes by Bernard Noon only. Bernard Noon had in his possession at the time of the death of his wife a certificate calling for the sum of $8,000. He presented this to the bank, took out $1,000 from the amount for use in defraying funeral expenses and debts incurred by the sickness of his wife, and received from said Sweeney, cashier, another certificate for $7,000. This last certificate was issued in the same form as the others. On January 3, 1928, Bernard Noon presented this certificate, received the money on it, and placed the same in his checking account. The executor of Bernard Noon found in this checking account $7,052.65, and inventoried it as a part of the estate of Bernard Noon..

At the time of the death of said Catherine Noon, there was in existence a $500 United States government registered bond, bearing serial No. 1044715, standing in the joint names of Bernard Noon and Catherine Noon. Some time after the death of said Catherine Noon, Bernard Noon, the surviving husband, through the agency of the Bank of Corning, Ohio, sent this bond to the Treasury Department at Washington for exchange into a coupon bond, under authority of Treasury Regulation No. 300, dated July 31, 1923. In pursuance of this regulation, a coupon bond for $500, bearing serial No. E 01044715, was issued and delivered to said Bernard Noon. This bond was found by the executor of Bernard Noon in a lock box at the bank of Corning, Ohio, which box was in the name of said Bernard Noon, and inventoried as part of the assets of his estate.

The foregoing is a comprehensive statement of the facts in this case.

The defendant in error claims that the said Catherine Noon at the time of her death, August 10,1927, had full title to one-half of the $8,000 certificate of deposit, and likewise full title to one-half of the $500 United States government registered bond, and that she (Ann Blocks), as administratrix, seeks to recover from the estate of said Bernard Noon the said sum of one-half of said two items of property.

On the other hand, W. D. Foraker, as executor of Bernard Noon, the plaintiff in error, claims full title in said Bernard Noon, deceased, to the whole of said certificate and said bond,, and denies the right of defendant in error to participate in any part thereof.

Both these parties are deceased; the cashier of the bank at Corning, Ohio, who handled all of the transactions, is likewise deceased, so that the conversations between him and the said Catherine Noon and Bernard Noon, or either of them, and the directions given at the time of taking out the respective certificates and the renewals thereof, and the purchase of said bond, and their reasons, if any, for having the same issued in said form, and as to what disposal, if any, was to be made thereof in case of death, are absent from the record.

We have before us the instruments as issued. The certificate as a whole is payable to either. The bond was issued in their joint names. After the death of his wife, Bernard Noon cashed the certificate, placed the money in his own checking account, as his own money, exchanged the registered bond for a coupon bond, and claimed all of it as his own.

Now the question arises, whose money in fact was it with which the certificates of deposit and bonds were purchased? We believe that under the recent law in Ohio the principles have been laid down and well established upon which this case can be decided, instead of going to the courts of other states where divided opinions have been held and where decisions have been affected in part by the statutes of particular states .and the common law therein.

From the presentation of this case in oral argument and an examination of the briefs filed, the theory of counsel for the plaintiff in error seems to be that survivorship in Ohio could be presumed or ingrafted in the common ownership in certificates of deposit where no survivorship was expressed, either in the certificate or by declarations made to the cashier of the bank where the money was deposited. In Ohio we believe this theory has been abandoned completely, and rightly so, by reason of the language expressed by the Supreme Court in In Re Estate of Hutchison, 120 Ohio St., 542, 550, and 552, 166 N. E., 687, wherein it was held, that, while joint tenancy with the incidental right of survivorship does not exist in Ohio, the parties may, nevertheless, contract for a joint ownership, with the right of survivorship, and at the death of one of the joint owners the survivor succeeds to the title to the entire interest, not upon the principle of survivorship, as an incident to the joint tenancy, but by the operative provisions of the contract. If a joint tenancy is expressed without words of survivorship, under the unbroken line of authorities in Ohio it will be considered as a tenancy in common.

At page 550, 120 Ohio State, 166 N. E., 690, supra, we note the following: “The principal contention in the arguments of counsel relates to the right of contract for survivorship in Ohio. It may be broadly stated that title to either real or personal property by technical joint tenancy is not recognized in this state; that is to say, joint tenancy, with the necessary attributes of unity of interest, title, time, and possession, * * * is no longer recognized, and wherever the expression ‘joint tenancy’ is found, without any effort to expressly provide for survivor-ship, it is uniformly construed as a tenancy in common. In many states of the Union statutes have been passed abolishing joint tenancy. No such statute has ever been enacted in Ohio, but early in the history of our state a statute was enacted (1 Chase’s Stats., 194) which gave the right of partition among joint tenants.”

So that the central thought in the above case can be applied to the case at bar, that is, that survivor-ship is not presumed in Ohio, but must be definitely contracted before it becomes operative in Ohio. In the case at bar there was no survivorship, and none can be presumed, so that we believe that under well-established rules in Ohio survivorship must be expressed somewhere, either in the certificates themselves or by notations or declarations to the bank, in order that the survivor .may receive them. However, funds owned in common or owned individually by one party can become the property of the survivor, and in all cases in Ohio where the fund has passed to the survivor either the word “survivor,” or a contract or declaration for survivorship, has existed in the deposit. In this case there is no survivorship mentioned, no direction to the cashier of the bank, and no contract of survivorship. That, then, eliminates the contention of the plaintiff in error that he is entitled to these funds in Ohio as a representative of the survivor of Catherine Noon.

In addition to the claim of survivorship, as urged by defendant in the court below, there is also the claim of presumption of ownership of these funds at the time they were deposited, and he now claims that the burden was upon the plaintiff to establish by extrinsic evidence the fact that she was a joint owner in these moneys deposited, and that no presumption arises in her favor by reason of the wording of the certificate and bond and the circumstances of the case.

Mr. and Mrs. Noon had been married for more than twenty years, and from the record it appears that Mr. Noon had owned and lived in a home at Corning, Ohio, which he inherited from his father. It does not appear at that time that he had any money. At the time of their marriage it appears that Mrs. Noon owned a lot in Columbus, Ohio, and that she had on deposit at the Bncheye Building & Loan Company, Columbus, Ohio, the sum of $1,950. The record also discloses that Bernard Noon worked for a railroad company and received his earnings. It is also true that the said Catherine Noon, as shown by the record, was a thrifty wife. From an examination of the record in this ease we cannot presume that all of the money saved by this thrifty couple came exclusively from the earnings of Bernard Noon. It would be a mere assumption on our part to say that, because a man had money from one source, these certificates of deposit were created from that source, unless it was proved that there were no other sources, by inheritance or otherwise; which has not been done in the instant case. In the case at bar there was no showing that this couple had received revenue from other sources, but we have a finding of the trial judge, acting as a jury, that this fund was accumulated by Mr. and Mrs. Noon as their joint and common fund and belonged to both of them. That finding of fact cannot be set aside by this court unless it is manifestly against the weight of the evidence.

However, if that finding had not been made by the trial court, a presumption would arise that at the time the money was placed in certificates of deposit and the bond the money was impressed with a contract of ownership, wherein they had equal rights, without any survivorship.

In 7 Corpus Juris, 640, it has been held that “the presumption is that the interest of the joint depositors is equal.”

It is to be noted that in Ohio ownership is presumed to be vested in the names as given in the deposit, or investment, in the absence of other testimony to the contrary.

The above principle of law is well laid down in Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182.

An examination of the record in the case at bar clearly shows that the fund in question was the joint savings of Mr. and Mrs. Noon, the joint earnings and savings for their-lifetime. The checldng account in which they first saved their money was in their joint names. Both Mr. and Mrs. Noon had charge of these funds, and a reading of the certificates, copies of which are attached to the bill of exceptions, shows that upon more than one occasion Mrs. Noon transferred the certificate on her own indorsement. In other words, Mr. Noon did not assume full control of these funds, but on many occasions Mrs. Noon herself transferred them.

With reference to the registered Liberty bond, in which $500 was invested, which was registered with the same words that appear in the certificate of deposit and in their joint checldng account, this fund was converted by Bernard Noon, after the death of his wife, into another Liberty bond. It is true that, for the purpose of registration and transferring, the rules of the United States Treasury recognize the survivor as the proper party to whom transfer of the bond should be made. That rule is for the convenience of the United States government in the transaction of its business, and does not and cannot confer title in the Liberty bond, or create a contract of survivorship in the bond in the state of Ohio, where a contract of survivorship is not presumed.

So in conclusion, there being no contract of survivorship in any of these funds, the funds being joint funds, in which both Mr. and Mrs. Noon were tenants in common, each owning the one-half interest thereof, we find and hold that the petition in error be, and the same is hereby, dismissed, and the judgment of the common pleas court is hereby sustained.

Judgment affirmed.

Sherick, E. J., and Montgomery, J., concur.  