Quesenberry v. Funk

• Decision Date: 11 June 1962
• Docket Number: No. 5419,5419
• Citation: 125 S.E.2d 869,203 Va. 619
• Parties: THELMA C. QUESENBERRY, ET AL. v. MABEL C. FUNK, ET AL. Record
• Court: Virginia Supreme Court

Page 869

125 S.E.2d 869

203 Va. 619

THELMA C. QUESENBERRY, ET AL. v. MABEL C. FUNK, ET AL.

Record No. 5419.

Supreme Court of Appeals of Virginia

June 11, 1962.

Eugene L. Nuckols (Crowell, Deeds & Nuckols, on brief), for the appellants.

Philip M. Sadler and James C. Turk, for the appellees.

JUDGE: WHITTLE

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

This chancery suit was instituted in the Circuit Court of Pulaski County by five of the heirs at law of Walter S. Coalson (appellees) who died testate in October, 1958. The suit was filed against Thelma C. Quesenberry, another heir at law of Coalson, and her husband, W. Eugene Quesenberry, executor under Coalson's will.

The suit involved the ownership of funds in a savings account which before Coalson's death stood in his name and the name of Mrs. Quesenberry, jointly, with the right of survivorship. Complainants alleged that the funds in the joint account should be a part of decedent's estate while the respondents contended that the money belonged to Mrs. Quesenberry.

The chancellor heard the evidence ore tenus and on the 27th day of February, 1961, entered a decree adjudicating that the funds in the savings account were a part of the assets of the Coalson estate.

Following the entry of this decree Mrs. Quesenberry filed a petition in the Circuit Court praying that the joint savings account instrument be declared a codicil to Coalson's will. After considering the instrument and hearing evidence on its execution the court, by its decree of June 16, 1961, denied the prayer of the petition, the effect of which was to reaffirm that the money in the savings account was an asset of the Coalson estate. Appeals were noted to the entry of both decrees.

The questions raised by the Quesenberrys in their assignments of error are: (1) Should the motion to strike appellees' evidence have been sustained? (2) Was the contract between the bank and the 'joint owners' ambiguous so it could be altered by oral evidence? (3) Was the intent manifested in the instrument that the survivor should be the owner as provided in § 55-21, Code of Virginia? (4) Did the evidence show a gift in praesenti of the savings account? (5) Was the instrument executed by Walter S. Coalson a testamentary disposition of the savings account, and if so, was it properly executed and witnessed?

It is conceded that at the time the savings account was changed from Coalson individually to Coalson and Mrs. Quesenberry jointly, Coalson had been ill for a long period of time; that he was infirm and unable to attend to his business affairs; and that all monies in the savings account were created by Coalson.

Mrs. Lucille Amos, a bank employee, testified that when Mrs. Quesenberry called for the card at the bank she said that Mr. Coalson was ill and not able to come to the bank and do his banking, and that he wanted the card so he could make it a joint account in order that she (Mrs. Quesenberry) could make withdrawals for him during his illness.

John William Utt, an employee of the bank who was a witness to Coalson's mark on the joint savings account card, testified that Coalson said the reason he was signing the card was because he was not able to come to the bank and take care of his business, and that he wanted it fixed so that Mrs. Quesenberry could look after his business 'and keep his bills and everything paid up, and look after his needs.'

On cross-examination both Mrs. Quesenberry and her husband admitted that Utt was correct in his testimony concerning Coalson's statement as to his reason for making the change in the savings account.

Mrs. Quesenberry's testimony was to the effect that her father changed the account from his name to the joint account, having in mind the purpose of giving her anything that was left in the account after his death. She admitted that the money in the account belonged to her father and said 'if he was living and able to take care of his business or asked for it I would have gladly [turned it over to him] because it was his.'

The record discloses that W. Eugene Quesenberry, husband of Thelma C. Quesenberry and executor under the will, included the money in the assets of the Coalson estate until an official of the bank suggested that the purport of the card which left anything that remained in the account to the survivor inured to Mrs. Quesenberry's benefit, after which the executor excluded the money from the estate and joined his wife in her contention that, she being the survivor, the money belonged to her.

Under Question (1) -- 'should the motion to strike appellees' evidence have been sustained,' the Quesenberrys contend that the court should have struck any evidence varying the stipulation on the savings account card. In taking this position they rely solely upon the form of the deposit as evidenced by the deposit card. This is contrary to our holding in King, Ex'x v. Merryman, Adm'x, 196 Va. 844, 859, 86 S.E.2d 141, 149. In that case we rejected the theory now advanced by the Quesenberrys and held that in determining the ownership of money such as here involved subjective intent and not form controls. There we held that in the absence of any statutory presumption we would adhere to the rule that when a person deposits his money in the bank to the credit of himself and another, payable to the order of either, or to the survivor, the rights and interests of the depositors as between themselves are dependent upon whether the owner of the money intended to make a gift to the other, or whether the account was entered in joint form in accordance with a contract or for other purposes. This rule was reaffirmed in Wrenn v. Daniels, 200 Va. 419, 106 S.E.2d 126.

At the conclusion of appellees' evidence there arose a presumption that the bank account was set up for the convenience of Coalson and that the money became a part of his estate. The burden was then on the Quesenberrys to show that Mrs. Quesenberry was entitled to the money for some reason other than through the form of the deposit.

In King v. Merryman, supra, we quoted with approval from 38 C.J.S., Gifts, § 50, page 836: "Where the deposit by a person is in the name of himself and another, not his wife, the presumption is that it was done for the purposes of convenience only, and this presumption is strengthened by the illness or infirmity of the depositor."

It is interesting to note that since our decision in King v. Merryman, supra (March, 1955), the legislature in 1956 passed a statute (§ 6-55.1, Code of Virginia, 1950, and Acts amendatory thereto) providing that a deposit made in a bank in the names of a husband and wife, payable to either, or payable to the survivor, shall, upon the death of either spouse, be vested in the survivor. This statute in no way affected joint accounts in the names of those other than husband and wife.

The court properly overruled the Quesenberrys' motion to strike appellees' evidence.

Questions (2) and (3) presented by the Quesenberrys are: '(2) Was the contract between the bank and the 'joint owners' ambiguous so it could be altered by oral evidence?', and '(3) Was the intent manifested in the instrument that the survivor should be the owner as provided by...