Higgins v. Bowdoin, 880082
| Decision Date | 09 June 1989 |
| Docket Number | No. 880082,880082 |
| Citation | 238 Va. 134,380 S.E.2d 904 |
| Parties | Malcolm B. HIGGINS, II, Executor, etc. v. Jacqueline L. BOWDOIN. Record |
| Court | Virginia Supreme Court |
Jack E. Ferrebee (Stallings & Richardson, on brief), for appellant.
William L. Perkins, III (Price, Perkins & Larkin, Virginia Beach, on brief), for appellee.
Present: All the Justices.
In this appeal, Malcolm B. Higgins, II, Executor of the Estate of Gladys L. Steel (Higgins), claims, on behalf of the estate, money which his decedent had placed in a joint money market account with Jacqueline L. Bowdoin (Bowdoin), an individual who was not related to the decedent. The account card identified the account as a survivorship account. Higgins demanded the money from the bank which refused to pay it to him. Instead, the bank paid the money to Bowdoin. Higgins sued, seeking a return of the money. The matter was tried to a jury. However, the trial court struck Higgins' evidence at the close of plaintiff's case. Higgins appeals.
Because the trial court sustained a motion to strike at the conclusion of plaintiff's case, upon familiar principles, we will set forth the facts and all reasonable inferences arising therefrom in the light most favorable to Higgins. Gladys L. Steel (Steel), died testate on October 4, 1986. A will dated April 10, 1980, and a codicil to that will dated April 23, 1980, were admitted to probate. In the will, Steel made four specific bequests. One was to Bowdoin and her husband. Steel bequeathed to them her "1971 Volkswagen, or such personal automobile" as she might own at the time of her death. In the will's residuary clause, Steel left the remainder of her property to six of her relatives.
In the codicil, Steel made ten additional specific bequests. Again, one bequest was to Bowdoin and her husband, consisting of a marble top table, all dolls and doll furniture, all afghans, and all crystal and glassware. Other than the specific bequests listed in the codicil, Steel re-affirmed her will.
On April 12, 1985, Steel, accompanied by Bowdoin, went to First American Bank in Virginia Beach to close a savings account and to open a money market account. Rebecca B. Chandler was the bank employee who opened the money market account for Steel. Chandler discussed with Steel whether the account should be interest bearing or a regular account. She also recommended that the account be opened as a joint account so that if the depositor became sick or incompetent "someone could at least pay their bills for them." When Steel heard Chandler's advice, she was unsure and confused about what to do. Several times, Steel sought Chandler's advice regarding the names in which the account should be opened. Chandler said she could not tell Steel what to do.
Steel then conversed with Bowdoin about the matter. During that conversation, which Chandler overheard, Steel "mentioned that she didn't have anyone locally that she could--any family locally that she could add their name onto the account." Asked what happened after Steel conferred with Bowdoin, Chandler said "[w]ell, at that time I went ahead and started typing the signature card, and she said she would go ahead and put Mrs. Bowdoin's name on there."
Chandler did not recall that Steel had told her to create a survivorship account. When she was asked why she typed an "x" in the box signifying survivorship, Chandler said that almost every account was opened that way. She explained further, however, that joint accounts with survivorship were usually opened with two family members listed on the account. Chandler was unsure whether Steel understood that she was opening a survivorship account. All of the money in the account came from Steel.
Cary P. Quincy, Jr., who was Steel's neighbor for twenty-five years, contacted Higgins on his own when he learned of the disposition of the funds from the money market account because Quincy "knew that it was not the way that [Steel] wanted it." Quincy testified that he talked to Steel about the money market account in April 1985, shortly after Steel had opened the account. Quincy had long urged Steel to execute a power of attorney so that someone could manage her affairs if need be. In April 1985, the issue was fresh in Quincy's mind because he had just placed one of his uncles in a nursing home and had become responsible for taking care of his uncle's business affairs.
Quincy again asked Steel whether she had executed a power of attorney. She told him she had not but that "she had made up a checking account with Jackie [Bowdoin] which authorized her to write checks" on the account in the event that Steel became incapacitated. Upon learning what Steel had done, Quincy told her that if she had opened a joint account with Bowdoin, at Steel's death all the money in the account would belong to Bowdoin. Steel became "greatly disturbed" and replied, "[t]hat's not the way that I wanted it and that's not the way that I understood it." She was so disturbed by Quincy's statements that, had the bank been open, he would have taken her there immediately. Quincy asked Steel whether she was going to do something about it, she said "I sure do hope that you're wrong about that." Steel added,
Bowdoin was also of the understanding that the joint account did not have a survivorship feature. Higgins spoke to Bowdoin and her husband about the account shortly after he learned of its existence. Higgins talked to Bowdoin by telephone on October 11, 1986, seven days after Steel's death and two days after he received a bank statement regarding the money market account. Bowdoin told Higgins that, though she was aware it was a joint account, it was not a survivorship account.
Thereafter, on October 17, 1986, Higgins met Bowdoin and her husband at the local Division of Motor Vehicles' office to transfer title of the Volkswagen to them pursuant to Steel's will. At that time, he again asked Bowdoin about the account. Bowdoin reiterated that the account was a joint account. Bowdoin explained that she had been there on the day the account was opened and that it had been opened for the purpose of providing access to Steel's funds by Bowdoin in the event Steel became ill or was hospitalized as had occurred in 1982. Bowdoin further advised Higgins that, at the time the account was opened, she did not understand that it was a survivorship account.
The evidence also established that Steel had a close loving relationship with the individuals named in the residuary clause in her will. Further, it showed that the money market account was worth in excess of $106,000 and that, excluding the money market account, Steel's estate was valued at $170,000 to be divided among her six relatives.
The trial court struck Higgins' evidence because it was of opinion that Higgins was required to prove by clear and convincing evidence that at the time the account was opened Steel had a different intent than to create a survivorship account. Further, the trial court concluded "that the jury could not from that evidence find that the plaintiff [had] established by clear and convincing evidence that there was some intention different from that presumed by statute, that is, that the [survivor] would receive the funds."
Higgins advances four assignments of error which we paraphrase as follows:
1. That the trial court erred in imposing upon the plaintiff the burden of proving his case by clear and convincing evidence;
2. that the trial court erred in ruling that a joint account need not express survivorship in order for a joint owner to take by survivorship;
3. that the trial court erred in ruling that the evidence, viewed in the light most favorable to the plaintiff, was insufficient to present a jury question regarding decedent's intent at the time the joint account was opened; and
4. that the trial court erred in excluding from the evidence the will of decedent's husband.
We will consider the issues in the order set forth above. In order to resolve the first two issues, we must decide whether the case should have been tried according to common-law principles, as Higgins urges, or whether the provisions of Code §§ 6.1-125.1 through 6.1-125.16 were properly applied.
Under the common-law, the burden was on the party claiming survivorship rights in a joint account to establish entitlement to the money for reasons other than whether the account card was marked survivorship. Quesenberry v. Funk, 203 Va. 619, 622, 125 S.E.2d 869, 872 (1962). Further, under the common law, where a person made a deposit in his or her own name and the name of someone other than their spouse, there existed a presumption that the account was opened for the purposes of convenience only. Stevens v. Sparks, Executrix, 205 Va. 128, 134, 135 S.E.2d 140, 145 (1964). Thus, had common-law principles applied to the present case, it would have been presumed that the account was opened for Steel's convenience and Bowdoin would have been required to prove that when Steel opened the account, Steel intended to create survivorship rights in favor of Bowdoin.
Bowdoin submits that Code § 6.1-125.5 reverses the common-law presumption by creating a new presumption that any joint account is a survivorship account unless the depositor plainly designates that the account excludes survivorship. The statutory provisions relied on by Bowdoin went into effect July 1, 1980. The account here under review was opened in April 1985. Thus, Bowdoin argues, the account was fully subject to the statutory requirements.
Higgins argues that Bowdoin is not entitled to the benefit of the statutory presumption because the account card...
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