Dorsey v. Short

• Decision Date: 04 June 1974
• Docket Number: No. 13372,13372
• Citation: 205 S.E.2d 687,157 W.Va. 866
• Court: West Virginia Supreme Court
• Parties: Lyda DORSEY v. Beulah E. SHORT et al.

Page 687

205 S.E.2d 687

157 W.Va. 866

Lyda DORSEY v. Beulah E. SHORT et al.

No. 13372.

Supreme Court of Appeals of West Virginia.

June 4, 1974.

Syllabus by the Court

1. The provisions of Code, 1931, 31A--4--33, as amended, protects banks in their dispersement of proceeds jointly deposited in the form prescribed by the statute and create certain property rights in the individual depositors.

2. Code, 1931, 31A--4--33 as amended, creates, in the absence of fraud, mistake or other equally serious fault, a conclusive presumption that the donor depositor of a joint and survivorship bank account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant.

3. Prior to the death of a donor depositor, a rebuttable presumption exists under the provisions of Code, 1931, 31A--4--33, as amended, that the ownership of the funds is joint, a presumption which may be overcome by competent evidence.

James H. Wolverton, Ralph Dunn, Richwood, for appellant.

J. M. Tully, Summersville, for appellees.

SPROUSE, Justice:

This case is before the Court upon appeal from the judgment of the Circuit Court of Nicholas County. The action was instituted by Lyda Dorsey, as plaintiff, against Beulah E. Short and the Nicholas County Bank, as defendants. Lyda Dorsey is the mother of Beulah E. Short. The action is to recover money deposited by Lyda Dorsey in a savings account jointly in her name and her daughter's name. The circuit court, by an order entered June 13, 1972, granted summary judgment in favor of the plaintiff mother, and against the defendant daughter, dismissing the Nicholas County Bank as a party defendant.

It is uncontroverted that the sum of money involved is.$4,608.00; that it became the property of the plaintiff mother upon the death of her husband; that the money was deposited in the Farmers and Merchants Bank of Summersville in a joint and survivorship savings account in the name of the plaintiff and defendant; that the defendant made no contributions to the account; and that the defendant withdrew the money without the knowledge of the plaintiff, depositing it in a separate bank, the Nicholas County Bank, in the joint name of the defendant and her husband.

The facts upon which the circuit court based its action on the summary judgment motion are contained in the complaint, the answer, defendant's answers to interrogatories, and an affidavit by the plaintiff. Although the above recited facts are uncontroverted, the parties present different versions of other aspects of the transaction.

The plaintiff avers that the money was her sole and separate property; that her daughter, the codefendant, suggested to her that she add the defendant's name as a coowner of said bank account so that, in the event of illness or other casualty to the plaintiff, the money could be withdrawn for the use and benefit of the plaintiff; that the plaintiff at no time intended a gift of the moneys or any part of it to the defendant and made repeated requests for the defendant to return the money to the plaintiff after the defendant had withdrawn it from one bank and deposited it in her own name in another bank.

The defendant daughter avers that it was the mother, not she, who suggested that the money be placed in a joint account; that the purpose of placing the money in the joint account was to permit the daughter to use the money for the construction of a new house for the daughter and her husband; that the daughter had advised her mother that she would not use the money unless it was absolutely necessary for the benefit of the mother or for the construction of the new house; that the mother had tendered to the daughter the savings passbook but that the daughter told her mother to put the passbook 'in the trunk at the plaintiff's home', and this was agreed upon; and that both parties knew the location of the passbook and either party would have access to it if needed. The defendant also denied that her mother, the plaintiff, ever requested the return of the money to her. The defendant specifically denied that the reason for placing the defendant's name on the account was so that the funds could be reached in case of illness.

The plaintiff contended before the circuit court and contends on appeal that the actions of the mother in depositing the money in a joint and survivorship account did not meet the common law requirements for perfecting a gift.

The controversy, however, cannot be determined under the common law rules relating to gifts but must be resolved under the provisions of the Code of West Virginia, 1931, Chapter 31A, Article 4, Section 33, as amended. That section provides in part:

'When a deposit is made by any person in the name of such depositor and another or others and in form to be paid to any one of such depositors, or the survivor or survivors of them, such deposit, and any addition thereto, made by any such persons, upon the making thereof, shall become the property of such persons as joint tenants; and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any one of them during the lifetime of them, or to the survivor of survivors after the death of any of them; and such payment and the receipt or the acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge for all payments made on account of such deposit, prior to the receipt by the banking institution of notice in writing, signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof.'

The sole issue is whether the act of making a deposit by a donor in the form described in this section conclusively creates a joint tenancy property right in the donee or whether there can be a concomitant condition placed on the deposit by which the donor can defeat the donee's property right during the donor's lifetime. If it is possible under the language of Code, 31A--4--33 to make such a conditional deposit, then this was a question of fact in this case and summary judgment would not have been proper. In Lett v. Twentieth Street Bank, 138 W.Va. 759, 77 S.E.2d 813, this Court interpreted the predecessor section to Code 31A--4--33 primarily as it related to the survivorship language in the statute. Section 33 contains virtually the same language as the statute interpreted in Lett. In Lett, the donor of the joint account had gratuitously added his sister as a joint tenant to the account and died with his sister surviving him. The administrator of the estate contended that the statute was solely for the benefit of banks--protecting them in their distribution of the account. He contended that no property right was conferred on the gratuitous donee of the joint bank account interest. In determining this contention, this Court said:

'The statute above quoted is clear, unambiguous and needs no construction. The legislative purpose and intent in the enactment of the statute quoted in part above, was to protect banking institutions. In so doing, the statute created certain property rights in all of the depositors named in a savings account.

'It is to be observed that the element of survivorship in a joint tenancy in real or personal property, in general, has been abolished by statute, Code, 36--1--19, which provides, in substantce, that any interest theretofore belonging to a decedent, whether present, by way of reversion, remainder or other future interest, whether it be in real or personal property, shall be disposed of as if the person owning such interest had been a tenant in common.

'But Code, 31--8--23 restored the element of survivorship as to joint deposits made in a bank. In this situation, unless there is some other reason for denying the plaintiff recovery, she is entitled to the deposit made by her brother and the accrued interest thereon. Joint tenancy having been restored as to joint bank deposits, the element of survivorship as it existed at common law, is likewise restored as to such deposits.' Lett v. Twentieth Street Bank, Supra at 762,...