Appeal, No. 199, Jan. T., 1949, from judgment of Court of Common Pleas of Crawford County, May T., 1946, No. 14, in case of Earl Isherwood, Executor, Estate of Jennie Isherwood, Deceased, or Ruth Dowler, claimant v. Springs-First National Bank in Cambridge Springs. Judgment affirmed.
J. Perry Eckels, for appellant.
A. Grant Walker, with him J. A. Bolard and Humes & Kiebort, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE JONES
Jennie Isherwood of Cambridge Springs, Pa., died testate on November 16, 1943. She appointed as executors of her will her son Earl and her daughter, Ruth Dowler, to whom letters testamentary were granted. She also left another daughter to survive her.
On September 1, 1934, Mrs. Isherwood, accompanied by her husband and her daughter, Ruth Dowler, had gone to the Springs-First National Bank in Cambridge Springs and there opened a savings account with money of her own in the sum of $2500 in the joint names of herself and Ruth Dowler. After the probate of Mrs. Isherwood's will, which was not found for almost two years after he death, a dispute arose between Mrs. Dowler and her co-executor, Earl Isherwood, with respect to this bank account. The latter claimed it was part of the deceased mother's estate, while Mrs. Dowler claimed it was her own individual property as the surviving joint tenant of her mother. Earl, acting alone as executor of his mother's will, sued the bank to recover the fund for the decedent's estate. The bank answered, denying any pecuniary interest in the account, and impleaded as an additional claimant of the money Mrs. Dowler who was ruled to file her claim in the proceeding, which she did. An issue to try little to the account was thereupon framed with Ruth Dowler, the claimant, as plaintiff, and Earl Isherwood, executor of the mother's will, as defendant.
Upon trial of the issue, the jury rendered a verdict in favor of the plaintiff. Subsequently, the learned court below entered judgment for the defendant n.o.v. and the plaintiff took this appeal. The question involved is whether the evidence adduced by the plaintiff is legally sufficient to sustain the jury's finding.
The documentary evidence of the creation of the account consisted of a deposit slip showing a deposit in the bank's savings department on September 1, 1934, of $2500 "By Mrs. Jennie Isherwood and Ruth Dowler." The slip had been prepared by the bank clerk on duty at the time who died before this controversy arose. To evidence the deposit, the bank issued a pass book which bore the designation "Mrs. Jennie Isherwood or Ruth Dowler"; Mrs. Isherwood retained possession of the pass book until her death. No signature card was offered in evidence nor was there any evidence that one had ever been signed by either Mrs. Isherwood or Mrs. Dowler. The bank's ledger sheet containing the account was received in evidence and showed on its face in type-writing, following the printed word "Name", "Isgerwood, Jennie Mrs. or Ruth Dowler." Above the typewritten names there was typed in a lighter and different type, -- "Payable to either or the survivor as joint tenants and not as tenants in common." The learned court below in its opinion on the motion for judgment n.o.v. says that "It is not clear from the evidence when these latter words were written on, but there was evidence that it was done by some bank clerk after the death of Mrs. Isherwood." Our examination of the record fails to disclose any evidence of sufficient probative force to support a finding to such effect. And, in any event, the jury's verdict requires that the writing and notations on the bank's ledger sheet be taken at face value as having been made in the ordinary course of business by someone acting for the bank. There was additional deposits to the account and some withdrawals therefrom made during
Mrs. Isherwood's lifetime, but there is no evidence as to who made them except for a $50 deposit on March 1, 1935, ...