This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.
In the court below the relative positions of the parties were reversed. The defendant in error, Letitia Hutchison, brought her action against the Union Trust Company to recover a certain sum of money, ownership of which she alleged under and by virtue of a contract with the bank, she having been one of the joint depositors of a certain fund that was deposited by her husband and herself in a joint account. Defendant in error further alleged that by an arrangement with the bank either or both could draw upon the account, and that whatever remained in said account after the death of either party should belong to the survivor. The petition goes on to allege that it had been customary for Mr. and Mrs. Hutchison to deposit money in this way, and both had access and could and did draw from said account, and that the money that was deposited in the bank was the proceeds of joint enterprises; *Page 286 that the money belonged to both parties, and, as already stated, was placed in a joint account, subject to be withdrawn by either one or both, and that any fund remaining was to belong to the survivor.
The petition further alleges that the money in question was deposited with the Union Trust Company during the lifetime of James Hutchison; that James Hutchison and Letitia Hutchison were husband and wife; that prior to the beginning of this suit James Hutchison had died, leaving the money in question in this lawsuit undisposed of; that after his death defendant in error made a demand upon the Union Trust Company to have this sum of money then remaining in the bank paid to her; and that the Union Trust Company having refused to permit her to draw this money, this suit was filed in the common pleas court, the purpose being to get an order against the bank compelling it to deliver the money over to her.
The salient or operative facts were set up in the plaintiff's petition. To this petition an answer was filed which admitted generally the allegations of the petition, but denied certain allegations with respect to the manner in which this fund in question was accumulated, or, in other words, the bank denied that the account had belonged to both Mr. and Mrs. Hutchison during the lifetime of the husband, James Hutchison. There were one or two other denials, but generally the allegations of the petition were admitted substantially as pleaded.
To this answer a general demurrer was filed, and on the hearing of that demurrer in the court below a judgment was rendered sustaining the demurrer. The defendant not desiring to plead further a general *Page 287 judgment in favor of the plaintiff below was entered, and error was prosecuted from that judgment to this court.
The sole and only question that is to be disposed of here is, Was the court below right in sustaining the demurrer to the answer of the defendant, as appears in the record of this case?
We have heard the arguments of counsel and familiarized ourselves with the pleadings, and are constrained to come to the same conclusion that the court below arrived at; that is, that the demurrer was rightfully sustained.
The argument is taken with a broader scope in this court than seems necessary for the determination of the question in the case.
Section 710-120, General Code, reads:
"When a deposit has been made, or shall hereafter be made in any bank or trust company transacting business in this state in the name of two or more persons, payable to either, or the survivor, such deposit or any part thereof, or any interest or dividend thereon, may be paid to either of said persons whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payments so made."
We think under the provisions of this statute the Union Trust Company would have been perfectly safe in paying this money to the plaintiff below. We are aware of the purpose for which this statute was passed by the Legislature. The majority of this court do not believe that that statute passed, or was intended to pass,title, but was simply enacted for the purpose of protecting a bank or depositary, *Page 288 where there had been a deposit in a joint account, from being liable in case the bank paid the fund or any part of it to the survivor. We do not think it necessarily means that this statute interfered with or changed the title in any way. It simply provided that in case such an account was placed in the joint names of two persons, and drawn out by the survivor, the bank was discharged from further liability.
Now we apprehend, that, notwithstanding this statute, if a fund is deposited in a joint account in a bank, and before the survivor has drawn the money the heirs at law, or those who would be entitled to inherit but for this joint account, have protested to the bank not to pay this sum of money, then, in that event, notwithstanding the statute, the bank would pay this money to the survivor at its peril, and that if the title had not passed by contract other than the existing relation between the parties it would not pass by virtue of the statute itself.
In the instant case the answer does not allege that any protest was made to the payment of this fund or any part of it. That, then, brings us squarely to the rule laid down by the Supreme Court in the case of Cleveland Trust Co. v. Scobie, Admr.,114 Ohio St. 241, 151 N.E. 373, 48 A.L.R., 182. I must confess, as one member of this court, that I do not quite agree with the doctrine laid down by the Supreme Court in the Scobie case, but that is the decision of the Supreme Court, and, as I understand that case, it holds that where a fund has been deposited in the joint names of two parties, even though all the fund, as it was in the Scobie case, had theretofore been the property of the depositor, the *Page 289 intention appearing that his co-depositor had the right to withdraw any or all during the life of the depositor, even though the depositor had the right to change his mind as to any or all of that portion of the fund which had not been withdrawn by either party from the joint account, at his death it would pass to and vest in his survivor. This we understand to be the rule laid down in the Scobie case, and if that be the law of theScobie case, the instant case is a much stronger case permitting the survivor to withdraw the fund after the death of the co-depositor, for, as appears in the record of this case, as already stated, the money deposited in the joint account was a joint fund and had accumulated from the joint property of the joint depositors, and the title to at least one-half of the property involved was already in the joint depositor who survived the other depositor. None of these things existed in the Scobiecase, and so the instant case is a much stronger case than theScobie case.
We therefore think that the court below committed no error in sustaining the demurrer to the answer. We do not think the answer set up a good defense in law under the rule laid down in theScobie case.
The judgment of the common pleas court is hereby affirmed.
Judgment affirmed.
SULLIVAN, P.J., and LEVINE, J., concur. *Page 290