I must dissent from the majority opinion which holds that the original intention of Mrs. Schroyer in making the deposit should be dispositive of our holding here. It may be assumed that her intention was to give Mrs. Yocum survivorship rights. Otherwise, she would not have made the account joint and survivor. However, if this was her only intention she would have *Page 56 chosen a savings account with interest rather than a checking account without interest. It could be equally assumed that her intention was merely to give Mrs. Yocum the right to draw checks in payment of her expenses, considering her advanced age and deteriorating physical condition, with survivorship rights.
However, I will not quarrel with the majority assumption except to say that it is only half of the original contract of deposit. The real contract between Mrs. Schroyer and the bank is this: "I hereby deposit $7,000 which the bank is to pay to me, or Mrs Yocum, or either of us, or the survivor, unless I drawall or part of it out tomorrow, or some other day, or unless Ineed it for myself, or unless I change my mind." It was not a completed gift to Mrs. Yocum. It was not a promised gift. It was contingent upon many things, not the least of which was that Mrs. Schroyer might change her mind. This is an incident of any joint and survivorship account. Mrs. Schroyer had this right up until the day before her guardianship. This is the way the account was as the guardian found it.
The guardian went to the bank, gave it a copy of his letters of guardianship and signed a withdrawal card "Daniel D. McKeever, guardian of Clara Schroyer," to govern future withdrawals from the account. No one would contend that after this, and after the account had been deposited with the president of the Wapakoneta National Bank, in bond reduction proceedings, that Mrs. Yocum, could make any withdrawals from it. She had lost her right. It had been taken away from her by operation of law. She had been stopped, and the bank would not and could not pay her. The guardian could not be a joint owner with her. He could not give it to her. He kept it and turned it over in kind to the executors of Mrs. Shroyer's estate after her death. The executors received it in kind as an asset of her estate.
The duty of the guardian under the law was to "manage the estate for the best interest of his ward." He could under the law have cashed it in and reinvested it in interest bearing securities. He could also, under the law, leave it *Page 57 as is expecting it to be necessary for his ward's future expenses. He included it in his inventory as "checking account Peoples National Bank, $7,046.15," without other words of description. No one contends that he should not have included it in his inventory as an asset of his ward's estate.
It was his duty under the law to "manage" the entire estate, not a part of it. It was not his duty to "manage" the estate so as to give $7,000 of it away. The intervention of the guardianship, with the control exercised over it by the guardian, now, in my opinion, makes this asset a part of Mrs. Schroyer's estate.