In re Lewis' Estate

• Decision Date: 19 April 1943
• Docket Number: 35311.
• Citation: 194 Miss. 480,13 So.2d 20
• Parties: In re LEWIS' ESTATE.
• Court: Mississippi Supreme Court

13 So.2d 20

194 Miss. 480

In re LEWIS' ESTATE.

No. 35311.

Supreme Court of Mississippi

April 19, 1943

Henry L. Finch, of Laurel, for appellant.

O M. Oates, of Bay Springs, for appellee.

McGEHEE Justice.

This is a contest between one of the married daughters of W. C Lewis, who died intestate, and his widow, Mrs. Lula Lewis who is the administratrix of the estate, and the case involves the question of whether a certain deposit of money in the sum of $972.47 shown to have been made at the Bay Springs Bank on December 17, 1936, "By Mr. or Mrs. W. C Lewis", subject to check, and which amount had been increased to such an extent that there was on hand the sum of $1,183.24 at the time of the death of W. C. Lewis on May 14, 1941, should be accounted for by the administratrix as an asset of the estate or retained by her as her individual property. The litigation arose in connection with whether or not the inventory filed by the administratrix should be accepted and approved by the Court as a full and correct inventory, omitting the item above mentioned and one other. It appears that upon the presentation of the inventory to the Court the same was approved as filed except as to the omission therefrom of this bank deposit and a further item of $575.58, which was being carried at the time of the death of W. C. Lewis in an account at the Commercial National Bank & Trust Company at Laurel either in his name "and" that of his wife, or in the name of W. C. Lewis "or" his wife. The contest on these two items was set for hearing at a later date and it having thereafter been conceded in open court that the money so deposited in the bank at Laurel belonged to the widow as survivor, the proof was not developed in this record as to all of the facts surrounding that transaction. The hearing proceeded as to the ownership of the said deposit in the Bay Springs Bank and upon the proof offered in support of the widow's claim thereto the Court below held that the evidence was insufficient to show that the deposit belonged to her individually upon the death of W. C. Lewis, but that the same belonged to his estate and it was decreed that this money be accounted for accordingly. From this decree Mrs. Lula Lewis (Mrs. W. C. Lewis) has appealed.

To maintain the issue on behalf of the appellant she assumed the burden of going forward with the proof as to her ownership of the money in question, instead of letting the contestant meet the burden of establishing that the deposit in controversy was the property of W. C. Lewis, deceased, at the time of his death, and through whom the contestant is claiming by inheritance. At any rate, the only issue presented for decision on this appeal is whether or not the evidence offered by the widow was sufficient to show that the deposit made to the account of Mr. or Mrs. W. C. Lewis was made by him under such circumstances as to create, prima facie, a joint interest and ownership of the fund between himself and his wife with the right of survivorship, the contestant having offered no testimony to the contrary.

The cashier of the bank had no independent recollection of the circumstances under which the deposit was made on December 17, 1936, but the original deposit ticket was introduced showing that the deposit was made up of two checks drawn on the Bay Springs Bank, one for $178 and the other for $794.47, but the cashier could not testify to whom either of the checks belonged or to whom they were payable. It is not shown whether either Mr. or Mrs. W. C. Lewis had an account with the Bank at the time this particular deposit was made to their joint account, nor does it appear to whom the funds belonged by which this account was later increased or who made the subsequent deposits.

When being questioned about the account the cashier was asked: "He (meaning Mr. Lewis) had control of this account, didn't he?" And his answer was: "With Mrs. Lewis yes." He was further asked: "And he could check it out, he did not have to have her there when he wanted to draw a check?" And his answer was: "No; neither did Mrs. Lewis". He was further asked: "He had full control of that account, didn't he?" And he answered: "No, sir, I don't think so." And following the death of W. C. Lewis the bank permitted his widow to draw certain checks on the account and to then transfer the balance thereof to her individual account, clearly indicating that both the bank and Mrs. Lewis understood that the money belonged to the survivor of those in whose name it had been deposited.

Although the cashier could not recall the occasion when the deposit was made in December, 1936, or the circumstances in connection with any agreement that may have been had when Mr. Lewis deposited the two checks to the joint account of himself and wife, it was shown by the testimony of Marvin Lewis, a nephew of the deceased who drove his car for him where-ever he went at that time, that the witness was present in a little room behind the cashier's window where Mr. Lewis had the conversation with the cashier in the said office on the occasion when he deposited "something over $900.00" in the bank and heard the conversation which he construed to mean that his uncle "had it fixed to him and Aunt Lula; if he died she could draw it out-either one"; that the cashier required a card to be signed that day by Mr. Lewis which was done there in the little office and that he also gave him a card to take home for Mrs. Lewis to sign and which the witness says he saw her sign and place in the mail box for return to the bank. This witness was also asked as to whether this deposit was made "so either one of them could check on it", and he answered "Yes". He was then asked "Did he make any statement or not as to whose money it was?" and answered, "It was both of them". The cashier had testified that it was customary for the bank to require such depositors to sign a signature card but that at this particular time they had no printed joint account cards payable to either or the survivor (referring to a printed form such as is set forth in the opinion of the Court in the case of Stephens v. Stephens, Miss., 8 So.2d 462, which was not promulgated by the State Banking Department until the year 1940), but that sometime such agreements were typewritten on the back of a signature card or written and signed with pencil. He was unable to find any such card signed by Mr. and Mrs. Lewis, but this fact did not necessarily mean that no such card had been signed, since he admittedly required a signature card to be furnished in connection with accounts at the bank and he was able to produce only the original deposit slip in connection with this account.

The appellant also introduced as a witness their son-in-law, who was the husband of the only child of Mr. and Mrs. W. C. Lewis other than the contestant, and he testified that about two weeks after this deposit was made at the bank while he was at the home of Mr. Lewis, sitting on his porch, "he told me he had some money over there on deposit at the Bank and he had the account fixed to him and his wife so either could draw it out at any time, and in case he died it would belong to his wife, and if she died it would belong to him. He had it so they would not have to go to court with it". He was then asked, "Did he tell you of signing papers with the Bank to that effect?", and his answer was "Yes". He was further asked, "Did he undertake to tell you the contents of the papers?" He answered, "It was a slip showing it was a joint account". This witness was much confused as to the date or even the year when this conversation occurred and stated on cross-examination that he thought it was in 1940, that he would not say that it was as far back as 1936, 1937 or 1938, but that "years pass so fast now it might have been". He stated definitely, however, that it occurred inside of two weeks after the deposit was made and that the conversation took place in the presence of the wife of the witness and the appellant, and that Mr. Lewis told him about it because he wanted him to know how it had been fixed.

Whatever card relating to this joint account may have been signed by Mr. and Mrs. Lewis could not be produced before the Court below and the witness Marvin Lewis did not read the card which he claims to have seen them sign.

Nevertheless, it would seem that the testimony hereinbefore set forth should be sufficient prima facie to establish the intention of W. C. Lewis to create a joint interest and ownership in praesenti between himself and his wife when opening this account at the bank, and with the right of survivorship-a necessary incident of a legal joint tenancy in the funds in question. That although the widow did not draw any checks on this account prior to the death of W. C. Lewis, the test is what she had the right to do and not merely whether or not she exercised the right. According to the uncontradicted testimony of the cashier and other witnesses hereinbefore mentioned, she had the right so to do.

We are of the opinion that the facts hereinbefore set forth are sufficient to establish prima facie the intention of Mr. Lewis to create a joint interest and ownership of the widow in this joint deposit, and that her claim to the fund as survivor should prevail in the absence of any substantial proof to show both the fact (1) that Mr. Lewis was the owner of the funds deposited, and (2) that he established the joint account merely for convenience to enable his wife to check on the same if necessary for his sole benefit, and not with the intention of creating a joint tenancy therein.

The cases of Godwin v. Godwin et al., 141 Miss. 633, 107 So. 13, and Stephens v. Stephens, Miss., 8 So.2d 462, are cited by counsel on the question involved, the first of which...