DeLong v. Farmers Bldg. & Loan Ass'n

Citation137 S.E.2d 11,148 W.Va. 625
Decision Date23 June 1964
Docket NumberNo. 12286,12286
CourtSupreme Court of West Virginia
PartiesCecil G. DeLONG et al. v. The FARMERS BUILDING AND LOAN ASSOCIATION, a Corporation, et al.

Syllabus by the Court

1. 'The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Point 6, syllabus, Daugherty v. Ellis, 142 W.Va. 340 .

2. Paragraph (c), Section 8 Article 6, Chapter 31, Code, 1931, as amended, was enacted primarily for the protection of building and loan and federal savings and loan associations in the payment of their accounts to the persons in whose names they are listed or either of them or the survivor and, unlike Section 23, Article 8, Chapter 31, Code, 1931, does not create or restore a joint tenancy with the element of survivorship as it existed at common law as to shares or accounts issued by such associations to two or more persons, payable to either or the survivor, and does not affect or establish the property rights of such persons as between themselves.

Eugene T. Hague, Parkersburg, for appellants.

Malcomb B. Louden, George W. Hill, Jr., Parkersburg, for appellees.

HAYMOND, President.

This is an action instituted in the Circuit Court of Jackson County in December 1960 and subsequently transferred to the Circuit Court of Mason County, in which the plaintiffs, Cecil G. DeLong, Cyril DeLong, Charles L. DeLong and Paul Gale DeLong, seek a declaratory judgment to determine the ownership of an installment share account in The Farmers Building and Loan Association, Ravenswood, West Virginia, which account in form is payable to George DeLong or Clara DeLong, who were husband and wife. The plaintiffs are sons of George G. DeLong and the defendants are The Farmers Building and Loan Association, the depository of the account, Clara Harman DeLong, widow of George Gale DeLong who died intestate on April 11, 1960, George Robert DeLong, a son of George Gale DeLong, and E. W. Burdette and Charles Baker, Administrators of the estate of George Gale DeLong, deceased. The relief for which the plaintiffs pray in their complaint is that the court direct the defendant, The Farmers Building and Loan Association, to deliver the amount of the account and its accruals to the defendants, E. W. Burdett e and Charles Baker, Administrators of the estate of George Gale DeLong, deceased, or to the defendant, Clara Harman DeLong, as the ownership of the account between the estate of George Gale DeLong and Clara Harman DeLong may be determined by the court.

By final judgment rendered February 1, 1963, the Circuit Court of Mason County found that 20.4% of the entire account in question amounting to $8,763.59 and its accruals, was owned by the defendant, Clara Harman DeLong, and that the remaining 76.6% of the entire account amounting to $8,763.59 and its accruals, is a part of the estate of George Gale DeLong, deceased, and ordered the defendant, The Farmers Building and Loan Association, to set aside and deliver the portion of the account belonging to the estate of George Gale DeLong, deceased, to the personal representatives of the estate for distribution according to law and ordered the defendants, E. W. Burdette and Charles Baker, Administrators, to take charge of the amount owned by the estate and distribute such amount in the manner provided by law.

From that judgment this Court granted this appeal upon the petition of the defendants, The Farmers Building and Loan Association and Clara Harman DeLong.

The defendants assign as error the action of the circuit court in holding that the parties to the account owned and held it as tenants in common and in denying the contention of the defendants that the form of the account created a joint tenancy with the right of survivorship and that upon the death of the husband, George Gale DeLong, the entire account became the sole property of his widow, the defendant, Clara Harman DeLong, as the survivor.

The material facts are not disputed and the controlling question presented for decision is a question of law.

The account was entered in the defendant, The Farmers Building and Loan Association, on September 10, 1955, and in form is payable to George DeLong or Clara DeLong. The amount of the first deposit of $1,000.00 was made by Clara DeLong when the account was opened. On September 11, 1957, she deposited an additional $800.00, and on January 12, 1959, George DeLong deposited $7,000.00 in the account. The principal of the account consisted of these three deposits. There were withdrawals by Clara DeLong on February 8, 1958, of $120.00 and on March 29, 1958, of $658.52. The balance of the account on January 13, 1961, was $8,763.59 and with its dividend accruals the amount of the account on June 30, 1962, was $9,299.99.

The decision of the question of the ownership of the account is governed by the provisions of paragraph (c) of Section 8, Article 6, Chapter 31, Code, 1931, as amended, which is in this language: 'Any building and loan or federal savings and loan association may issue shares, share accounts or accounts in the names of two or more persons payable to either, or payable to the survivor, in which event either of said named persons shall have power to act in all matters related to such shares, share accounts or accounts, including the right to collect dividends and to withdraw from such association, whether the other person or persons named in such shares, share accounts or accounts be living or not. The receipt or acquittance signed by any such person, to whom any payment or delivery of rights is made, shall be a valid and sufficient release and discharge of any such association for the payment or delivery so made.'

There is no evidence to show that there was any agreement between the DeLongs which created a joint tenancy in the account, or which indicated that the husband gave or intended to give his share or portion of the account to his wife, or that she acquired any interest in or title to his share or portion by virtue of any trust created by or existing between them. It is therefore clear that if the husband and the wife were the owners of the account as joint tenants their estate as joint tenants was created by virtue of the provisions of paragraph (c), Section 8, Article 6, Chapter 31, Code, 1931, as amended. This is the contention of the defendants, The Farmers Building and Loan Association and Clara Harman DeLong.

By Section 19, Article 1, Chapter 36, Code, 1931, the substance of which has been the law of this State since its formation, the common law rule of joint tenancy has been changed and the right of survivorship in such joint tenancy has been abrogated, except to the extent provided in Section 20, Article 1, Chapter 36, Code, 1931, which has also been in effect since the formation of the State, and which expressly states that Section 19 shall not apply to any estate which joint tenants have as executors or trustees, or to an estate conveyed or devised to persons in their own right, when it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the others who survive. See Wisner v. Wisner, 82 W.Va. 9, 95 S.E. 802; Bank of Greenbrier v. Effingham, 51 W.Va. 267, 41 S.E. 143.

This Court has held that by statute originally enacted in 1919, Section 23, Article 8, Chapter 31, Code, 1931, joint tenancy together with the element of survivorship as it existed at common law was restored as to joint deposits made by two or more persons in a bank but only as to such bank deposits. Lett v. Twentieth Street Bank, 138 W.Va. 759, 77 S.E.2d 813.

In the Lett case it appeared that Wilson made two deposits in a savings account in a bank in the names of Boyd or Delania Wilson, who were husband and wife. Subsequently he added the name of Prudence Lett, his sister, and the form of the account was changed to Boyd or Delania Wilson or Prudence Lett. After the death of Boyd Wilson and Delania Wilson, Prudence Lett instituted suit to collect the amount of the account and this Court held that she was entitled to the account under the provisions of the foregoing banking statute as the survivor of the three joint tenants of the account. That case, being based upon a materially different statute, is clearly distinguishable from the case at bar, though in each instance the form of the account, being in the disjunctive, is identical.

In Wisner v. Wisner, 82 W.Va. 9, 95 S.E. 802, decided in 1918 and before the enactment of Section 23, Article 8, Chapter 31, Code, 1931, this Court held that a joint estate was created in money deposited by a husband and wife in a joint account in a savings bank by virtue of a stipulation in the passbook that the amount deposited by them as joint owners was to be payable to the order of either or the survivor and that by so doing they created by contract a joint estate in the money so deposited, subject to the right of survivorship, and that such contract was unaffected by certain existing statutes relating to gifts inter vivos, joint tenancy, and survivorship, and that the survivor was entitled to the fund which remained in the joint account. In that case, however, the Court made it clear that the joint tenancy with the right of survivorship in the deposit considered in that case was created by the contract according to which the deposit was made. In the opinion the Court said: 'But it is well settled that the parties may be such a joint deposit or by deed or other contract create a joint estate therein, with right of survivorship, notwithstanding right of survivorship at common law has been abrogated by statute. In such case the right of survivorship is created by contract and not as one pertaining to joint tenancy as at the...

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    ...made clearly evident in a titling document, the Legislature has in effect preempted the matter. See DeLong v. Farmers Building and Loan Assn., 148 W.Va. 625, 137 S.E.2d 11, 17 (1964); 4 Thompson on Real Property § 1782 (1979 Repl.Vol.). And although some courts have held that killing destro......
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