Sloan v. Jones

• Decision Date: 27 July 1951
• Parties: , 192 Tenn. 400, 25 A.L.R.2d 1235 SLOAN v. JONES et al.
• Court: Tennessee Supreme Court

Page 506

241 S.W.2d 506

28 Beeler 400, 192 Tenn. 400, 25

A.L.R.2d 1235

SLOAN v. JONES et al.

Supreme Court of Tennessee.

July 27, 1951.

Albert F. Sloan, South Pittsburg, for appellants.

A. A. Kelly, South Pittsburg, for appellees.

BURNETT, Justice.

This is a contest between the heirs of a deceased wife and the administrator of her deceased husband over a fund which was deposited in a Tennessee bank in the name of 'Joe Tatum or wife' when both Joe Tatum and wife were residents of Tennessee. Subsequent to this deposit Joe Tatum and wife moved to the State of Alabama where the wife pre-deceased her husband who subsequently died and the administrator (the appellant herein) qualified as administrator of his estate. Obviously the administrator takes the position that this estate created an estate by the entireties and upon the death of the wife the husband succeeded to the entire estate. The contrary position is taken by the appellees, heirs of the wife, who take the position that the estate should be divided according to the laws of Alabama and according to the law of descent and distribution of that State. The Chancellor decided with the appellees, that is, that the estate was governed by the laws of the State of Alabama governing ownership of property between a husband and wife and governing descent and distribution. The administrator has seasonably perfected his appeal and we have heard argument and given the matter serious consideration.

Our first consideration, obviously, is whether or not a bank deposit made in the name of 'A or Wife' creates an estate by the entireties in Tennessee where such estates are recognized. We do not propose to go into any academic discussion of such estates as the previous decisions of this Court, and others, have fully and amply covered this field. Suffice it to say that the essential characteristics of such an estate is that each spouse is seized of the whole or the entirety and not of a share, moiety, or divisible part. Each is seized per tout et non per my. Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629. The previous decisions of this Court have recognized the fact that an estate by the entireties existed in personal property. Smith v. Haire, 133 Tenn. 343, 181 S.W. 161, Ann.Cas. 1916D, 529; Campbell v. Campbell, 167 Tenn. 77, 66 S.W.2d 990 and State ex rel. v. Progressive Building & Loan Ass'n, 174 Tenn. 597, 129 S.W.2d 513. This Court, though, has never had before it the precise question as to whether or not such an estate may be created in a deposit in a bank, as was done in the case now before us.

It is the contention of the appellees that these cases are not applicable because they dealt with the consideration of choses in action such as bills, notes, certificates and etc., which were made payable jointly to a husband and wife and which required the joint signatures of the payees for the purpose of sale, transfer or collection. We are satisfied under the authority of the cases last above cited that a tenancy by the entirety may be created by a joint deposit 'where an intention to effect joint ownership' of such a deposit appears or may be inferred from the circumstances.

This Court in State ex rel. v. Progressive Building & Loan Ass'n, [174 Tenn. 597, 129 S.W.2d 514] supra, made the following comment which is pertinent here: 'The joint deposit was made in the name of J. R. Bailey or wife, Etta Bailey. There are many cases holding that in such case 'or' shall be read 'and', and upon that the theory of an estate by the entirety established. But many of the cases hold that the use of 'and' instead of 'or' is not essential where an intention to effect joint ownership of a chose in action otherwise appears or may be inferred from the circumstances.' Following this statement this Court cited the case of In re Parry's Estate, 188 Pa. 33, 41 A. 448, 49 L.R.A. 444, 68 Am.St.Rep. 847, as authority for that statement and relied upon the holding of the Pennsylvania Court in support thereof.

After the Chancellor had decided the lawsuit, as above indicated, counsel for the appellant filed a petition to rehear and along with this petition he filed certain affidavits including that of the President of the First National Bank of South Pittsburg, Tennessee, in which bank this deposit was. Counsel for the appellees likewise filed his own affidavit and that of the President of the same bank. The appellees took the position that this information, obtained in these affidavits, had been received by counsel for the appellants prior to the time that the cause was heard and that it was therefore too late, in other words, it was not in effect newly discovered evidence and was something that he knew prior to the time of the hearing and, therefore, the affidavits should not be considered. The affidavit of the bank president as filed by the appellant among other things says 'that it was expressly agreed between Mr. & Mrs. Joe Tatum and the bank that either one of them could check out said account upon the death of either, the survivor would become absolute owner of said funds'. The affidavit of the same man offered on behalf of the appellee opposing said petition to rehear said: 'that the same should be opened in the name of 'Joe Tatum or wife', with the right of either of the parties to draw checks upon the account and with the right of survivorship in the entirety of said account on the part of the surviving spouse.'

Apparently the Chancellor took the position that these affidavits did not affect the merits of the cause because he denied the petition to rehear. From the decree and opinion it is apparent to us that the Chancellor concluded that the law of Alabama, in reference to this estate, governed regardless of the account or the way that it was made. It was probably for this reason that he denied the petition to rehear. We think...