Held, Admr. v. Myers , 48 Ohio App. 131 ( 1934 )

The plaintiff, Edward J. Held, is the administrator of the estate of Frederick Tattersall, who died at a hospital in Toledo on January 18, 1933. The action was brought to compel the defendant, Laura B. Myers, to transfer to the plaintiff, as administrator, a certain stock account of the face value of about $6,000, in The Peoples Savings Association, which defendant claims is hers by reason of a transfer to her by decedent. The Court of Common Pleas rendered a decree for the plaintiff, ordering transfer of the stock account to him, and from that decree an appeal has been taken to this court.

The evidence discloses that for a long time prior to his death Frederick Tattersall had a so-called stock account in The Peoples Savings Association standing in his own name, and that on January 13, 1933, he met the defendant, Laura B. Myers, and her husband, who were and had been friends of his for a good many years, and informed them that he was about to go to a hospital for observation and treatment, as he was not feeling well. Before going to the hospital, they went with him to the office of The Peoples Savings Association, where he had some conversation with an officer of that association in regard to his account, and about drawing money therefrom during the time he should be in the hospital. The officer advised him to open a joint survivorship account, which he thereupon did, transferring to Laura B. Myers one-half of his stock account, No. 48529, in The Peoples Savings Association, the transfer being marked "J. S.," meaning thereby "joint and survivorship account." After this was done Mrs. Myers and her husband took the decedent in their automobile to the hospital. The evidence shows that before the transfer of the stock account was made, he walked from where he resided across the street to a barber shop in order to be shaved, and that he was not at that time believing he was seriously ill. However, he died on January 18, after being taken to the hospital on the thirteenth of that month.

The plaintiff contends that while in form the transfer is absolute, into what is denominated a joint and survivorship account, yet it was in fact made without consideration, and in trust, for the purpose of enabling Mrs. Myers to draw, during decedent's stay in the hospital, whatever amount would be necessary to pay the expenses which should be there incurred, and that it was agreed between the parties at the time of the transfer that when the decedent got out of the hospital the stock account should be transferred back to him. The plaintiff further claims that the transfer vested no present interest in the fund transferred, and was only made as a matter of convenience to enable the withdrawal of money to pay expenses incurred in the hospital and while he himself was unable to go to the savings association to withdraw the money.

It would serve no useful purpose to review in detail the evidence introduced in this case. We have given it all a careful examination and are fully satisfied that the establishment of this joint and survivorship account in the savings association in the name of Frederick Tattersall and Laura B. Myers was merely as a matter of convenience and for the accommodation of Tattersall during his illness, and that it vested no present interest in Laura B. Myers at the time of the transfer; and this appears by clear and convincing evidence to have been the agreement of the parties. Indeed, William Myers, husband of the defendant, testified that Tattersall stated in the presence of the witness and Mrs. Myers:

"I know you people are honest and if I do come out I know it will be turned back to me in case I did come out."

The Supreme Court held in Cleveland Trust Co. v. Scobie,114 Ohio St. 241, 249, 151 N.E. 373, 48 A.L.R., 182, that in order to constitute a gift in such a case, an intent to transfer a present interest in the fund should be shown; and such an intent is wholly lacking in this case. The evidence shows that the decedent was and had been on friendly terms with Mrs. Myers and her husband for many years, and that he had brothers, a sister and a niece with whom he was on friendly terms. The value of the property claimed by the defendant, Mrs. Myers, is evidently more than half of the entire estate which the decedent owned at the time of the transfer.

Objections have been made relating to the introduction of evidence bearing on the relations existing between the decedent and Mrs. Myers and her husband, on the one hand, and between the decedent and the members of his family, on the other, and as to many other incidental matters having little, if any, relation to the merits of the case. The evidence showing those relations to have been friendly or otherwise was competent as bearing on the intent of Tattersall in making the transfer, and those relations, whatever they were, were well known at the time to all parties to the transaction.

No doubt can exist that parol evidence is admissible to show the existence of a trust in this case; such evidence has been held admissible even to engraft a trust upon a deed, the only requirement being that the evidence shall clearly and convincingly show the necessary facts. Boughman v. Boughman,69 Ohio St. 273, 69 N.E. 430.

Under the evidence in the case we are convinced that the plaintiff, as administrator, is entitled to the relief asked, and a decree will be rendered in his favor.

Judgment and decree for plaintiff.

WILLIAMS and LLOYD, JJ., concur.