King v. Merryman

• Decision Date: 07 March 1955
• Docket Number: No. 4332,4332
• Citation: 196 Va. 844,86 S.E.2d 141
• Parties: LOTTIE KING, EXECUTRIX, ETC. v. BLANCHE MERRYMAN, ADMINISTRATRIX, ETC. Record
• Court: Virginia Supreme Court

Page 141

86 S.E.2d 141

196 Va. 844

LOTTIE KING, EXECUTRIX, ETC. v. BLANCHE MERRYMAN, ADMINISTRATRIX, ETC.

Record No. 4332.

Supreme Court of Appeals of Virginia

March 7, 1955.

James H. Raby, for the appellant.

John Barton Phillips and Henry B. Crockett, for the appellee.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Americus V. Dodson died on November 20, 1951, eighty-four years of age, leaving seven adult children surviving. For a period of more than two years prior to his death, he had been in an enfeebled condition, and required the help of his children from time to time. On November 9, 1951, when he had reached the condition where his children felt that they could no longer care for him, he was carried by ambulance from his home to a hospital where he remained until his death.

Dodson's wife died on May 5, 1949, at which time there was a joint savings account in their names in The First National Bank of Alexandria. On the 24th day of May, 1949, the decedent signed a writing addressed to the bank, reading as follows:

'You are hereby authorized and requested to change the savings account No. 533, now standing in my name as A. V. Dodson to a joint account of myself and daughter, said account to read A. V. Dodson or Mrs. Lottie King, and subject to the check of either of us or the survivor. ' The account amounted to $1,642, and no checks were drawn on it prior to the death of Dodson.

On July 18, 1951, Dodson executed his last will and testament, leaving all of his property of every kind and description wheresoever situated to his seven children named therein, share and share alike. The appellant was named executrix and authorized to sell the real estate and divide the proceeds among his children.

The will was duly probated on November 30, 1951, and Lottie King, a non-resident, qualified as executrix, jointly with her sister, Blanche Merryman, as resident administratrix, with the will annexed. Subsequently, Lottie King filed an unsigned final account, in which she reported only the proceeds from the sale of the real estate of the deceased. Mrs. Merryman did not join in the report. Five of the children of the deceased, including Mrs. Merryman, filed exceptions to the account of the executrix on the ground that the latter had failed to account for the sum of $720, money which the deceased had in his home at the time he left to go to the hospital; and had likewise failed to account for the $1,642, which was on deposit in the bank, in the names of A. V. Dodson and Lottie King. They contended that Mrs. King had taken possession of the money left in the home, and that the deposit in the savings account was made in the joint names merely for the purpose of enabling Lottie King to draw on it as a matter of convenience for the benefit of Dodson while he was sick and enfeebled.

At the hearing before the Commissioner of Accounts, all of the children of the deceased testified. Mrs. King declared that on May 24, 1949, she went to the bank with her father when his savings account was transferred to their joint names, and he said to her at that time: 'If anything happened to him the money would be mine. ' She said he was not then in an 'infirm condition;' that, on November 9, 1951, he desired to go to a hospital to be taken care of 'because he was too much for me to handle;' that he then gave her his bank book and pocketbook, and said: 'This is all yours.' He said nothing to indicate how his hospital expenses were to be paid. She knew he had no other money or income, except a monthly retirement check of $60, which he used for ordinary living expenses; and that she was to pay the hospital expenses but expected to be repaid out of the money in his savings account. After the death of her father, Mrs. King had the bank transfer the account to her name.

Mrs. Murphy, sister of Mrs. King, said she was present when her father was taken to the hospital, saw him give his bank book to Mrs. King, and heard him say that 'it was all hers.' Later she testified that all she heard him say to her sister was 'Here is the bank book.' Her father had never told her about the money in the bank and she did not know anything about it, or the circumstances under which it was deposited.

Mrs. Webster testified that after her mother died, she went with Mrs. King 'to the bank to have her name put on the book so that Daddy when he got so he couldn't get to the bank to get any money, she could draw it for him. ' She went to his house on the night before he went to the hospital and found him so ill that he hardly knew her or her brother, Wallace. After her father went to the hospital, she told Mrs King she would help pay the hospital bills, and the latter replied: 'No, Daddy has enough money to carry him a while yet.'

Mrs. Catherine Tarsenko said that while she stayed at her father's home during February and March, 1951, she discussed his action with respect to changing the names in his savings account, and 'He told me that the reason that was changed was in case there was nobody there and Lottie would be there, that was to be used only for the hospital or for doctor's bill, nothing else.'

There was evidence which fully and conclusively showed that the deceased had a sum of money at his home at the time of his death, and that Mrs. King admitted, in the presence of all of his children at the time his will was read subsequent to his death, that she had found $720 in cash among his effects. The admission was denied by appellant.

The Commissioner of Accounts sustained both of the exceptions to the report of the executrix, and directed that an account, executed by both the executrix and administratrix, c.t.a., should be submitted, in which the sums mentioned should be credited to the estate of the deceased.

Mrs. King excepted to the findings of the Commissioner, and her exceptions came on to be heard before the Circuit Court. The Court, being of the opinion that the evidence and the law fully supported the findings of fact and the conclusions of law of the Commissioner, ratified and confirmed it in all respects. The appellant duly noted her exceptions and perfected this appeal from that order.

Appellant in her brief assigns three grounds of error to the ruling of the court. She contends (1) that the court erred in failing to hold, as a matter of law, that the ownership of the funds in the bank savings account passed to her as the survivor on the death of her father by virtue of the form of the deposit; (2) that the court erred in failing to hold, as a matter of law, that the evidence plainly showed that the deceased made her a gift causa mortis of the bank account; and (3) that there was no evidence to show that she found $720 belonging to the deceased in his home after his death.

In view of the overwhelming evidence that Mrs. King had found and taken possession of at least $720 of the funds of the deceased, counsel for appellant abandoned the assignment of error relating to these funds when the case was argued before us.

In support of her first assignment of error, appellant relies on § 6-55 of the Code of Virginia, and the case of Deal's Administrator v. Merchants and Mechanics Savings Bank, 120 Va. 297, 91 S.E. 135, L.R.A. 1917 C, 548, decided in 1917.

The question whether the funds in a joint savings bank account with a survivorship clause belong to the survivor on the death of one of the parties has been the subject of much legislation and litigation in all of the States. We are told that every State, except Kentucky, has enacted statutes regulating the payment of joint accounts opened in the name of two or more persons. It is not controverted that such statutes, usually found in banking codes, were originally adopted for the protection of the bank, so that it could make payment to the survivor of the joint account without being liable to the estate of the deceased depositor. Later, when cases arose involving the rights of the depositors as between themselves, some of the States enacted statutes to provide conclusive or rebuttable presumptions as to such rights. For more than half a century, the courts of this country have struggled to discover whether a joint deposit bank account with an extended right of survivorship, sometimes called a 'poor man's will,' is a gift, a trust, a contract, or joint tenancy, or a testamentary disposition.

Exhaustive annotations on the subject of 'Gift or trust by deposit of funds belonging to depositor in a bank account in the name of himself and another,' are contained in 48 A.L.R. 189; 66 A.L.R. 881; 103 A.L.R. 1140; 135 A.L.R. 993; and 149 A.L.R. 879. See also Michie on Banks and Banking, Volume 5 A, Permanent Edition, chapter 9, § 46; 7 Am. Jur., Banks, page 300, § 426, et seq.; 9 C.J.S., Banks and Banking, page 595, § 286.

In this case, it must be remembered that the savings fund account in question originally belonged to the deceased, and if the survivor of the joint account is entitled to it, it must have passed somehow to her from the deceased. The appellant makes no claim of a valid consideration for the transfer. As the survivor, she first bases her title upon the statute in view of the form of the deposit. Secondly, she claims the fund as a gift. Her contentions will be considered in that order.

The deposit on May 24, 1949, in accordance with instructions of the deceased, was made in statutory form. It expressly authorized the bank to credit the funds to the joint account of himself and daughter, and that it be made 'subject to the check of either of us or the survivor. ' That is all the deceased requested of the bank. His written instruction merely directed that either of the depositors or the survivor should be allowed to withdraw funds in the account. It does not contain language from which a presumption of an intention to create a joint tenancy, with the incident right of survivorship, might flow. It does not contain any language showing that it was his...