
    Vollmer et al. v. Vollmer.
    (Decided December 11, 1933.)
    
      Mr. Mitchell Wilby, for plaintiffs in error.
    
      Messrs. Powell S Carroll and Mr. J. A. McDonald, for defendant in error.
   Ross, J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein the action of the Probate Court of Hamilton county in sustaining exceptions to the inventory of a decedent’s estate was affirmed.

On April 16,1925, Prank Vollmer and Ms wife went to a savings bank and there deposited in their joint account $3,000. The defendant in error, Sophia Vollmer, contends that the money was the personal property of Prank Vollmer. The savings bank book was taken out under the following legend: “Prank & SopMa Vollmer or the Survivor.” The signature card contained the following agreement:

“We, the undersigned, owners of account No. 8703 in the Brighton Bank & Trust Co. of Cincinnati, Ohio, do hereby declare that all the deposits and credits now to our credit in said account, as well as all deposits hereafter made by, and credits hereafter given to us, in said account, have been and will be made and given to our joint account, and we hereby jointly agree and authorize and order said bank company to pay any and all of the deposits and credits now or hereafter to our credits in said account to or on the order of any one or more of us, as a whole or in installments, and said account shall continue to be so payable notwithstanding the death or incapacity of one or 'more of us. No recovery shall be had against said Bank company by us or either of us or by the legal representative of either of us, for amounts so paid and charged to such account.
“Dated at Cincinnati, Ohio, this 16 day of Apr. 1925.
“Prank Vollmer
“Mrs. Sophia Vollmer.”

The bank book contained the following regulation: “Deposits cannot be made nor money withdrawn unless this Pass Book is presented.”

The bank book was placed in Vollmer’s safe deposit box in the bank, and, as far as the record shows,, he alone had access to this box. Bnt there is nothing to show that his wife was ever refused the book, or would have been refused if she had requested it.

Vollmer and his wife accompanied each other when transactions with the bank involving this account occurred.

On May 22, 1930, Vollmer wrote the following:

This is separate from my will.
“May 22, 1930.
“My wish is that my wife, Sophia Vollmer, should have the money that is in the Bank (Book) in the safe in the Cheviot and Brighton Bank and Trust Company.
“The Bank Book is in both our names. There is Three Thousand Dollars ($3,000.00) in it.
“After my Death.
“Frank Vollmer.
“Witness: Walter Gr. Musekamp.”

The savings book was found in Vollmer’s safe deposit box at his death. The executors included the amount of the balance in the account in the inventory of the estate. The widow filed exceptions, which the Probate Court sustained, holding that the balance in the account was the property of the widow. The Court of 'Common Pleas affirmed the finding of the Probate Court.

Our attention is directed to Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182. The syllabus of the case is: “Where a person opens a savings 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 passbook 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 claimed that this authority is not decisive of the case before us, because the savings bank book in the instant case was not subject to continuous access by the wife of Vollmer. Was it not? There is nothing to show that at any time she wished, on one of these trips together to the bank, she could not have secured the book and drawn out such funds as she wished.

Title to the claim against the bank for the entire $3,000 passed to her, as well as to her husband, when the bank issued the book to them jointly, or to the survivor.

Only the possession of the book was kept by the husband, and there is nothing to show that this was an exclusive possession; but on the contrary, it was a most natural arrangement.

Recent decisions of the Supreme Court have made plain the necessity of taking the greatest care of savings account books. Why should it not be placed in Frank Vollmer’s personal box? Suppose the box had been in the wife’s name. Would this have affected Vollmer’s title to the account? Certainly not.

But our attention is called to the “letter.” This we think only cumulative, as affecting the action of Vollmer in placing the account in their joint names, or the survivor. He wanted no question about the account after he died. While he lived he could affirm his wife’s interest in the account. He had made more than a mere gesture by putting the account in their joint names. But after his death some one might question the effect of the survivorship clause in the legend upon the book. He wanted no such question left without a definite answer. The “letter,” addressed to no one in particular — “separate from my will,” as he said— was to emphasise not limit what he had already done.

To hold otherwise is to so manifestly frustrate what this man definitely intended that common justice must lay a staying hand upon the intervention of technical rules of construction, which may only be invoked to aid in securing justice — not in blocking its path. The “letter” would be an ineffectual testamentary disposition of the $3000; but it is not the letter that transferred title, it was the action of Vollmer, co-operating with the bank during the lives of the husband and wife, that transferred irrevocably title to the account to each or the survivor.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.  