Thomas v. Eubanks' Estate, 50234

Citation358 So.2d 709
Decision Date03 May 1978
Docket NumberNo. 50234,50234
Parties24 UCC Rep.Serv. 354 Doyle THOMAS v. ESTATE of Mrs. Ruby EUBANKS, Deceased, Miss Lottie Thomas, Administratrix and the Mechanics Savings Bank.
CourtUnited States State Supreme Court of Mississippi

Gibson & Newlin, Donald F. Newlin, Bruce, for appellant.

Moore & Moore, Paul M. Moore, Sr., Calhoun City, for appellees.

Before SUGG, WALKER and COFER, JJ.

SUGG, Justice, for the Court:

This appeal involves the question of whether a certificate of deposit payable to the order of two persons in the alternative created a joint account with the right of survivorship. On April 6, 1973 the Mechanics Bank of Water Valley, Mississippi issued a certificate of deposit in the amount of $14,000 payable as follows Mrs. Ruby Eubanks has deposited in this Bank $14,000.00 payable to the order of herself or Doyle Thomas in current funds 12 months after date on the return of this certificate properly endorsed with interest at 5% per cent, per annum.

Doyle Thomas filed suit in the Chancery Court of Calhoun County against the Administratrix of the Estate of Mrs. Ruby Eubanks and the Mechanics Savings Bank of Water Valley and claimed ownership of a certificate of deposit that was in the possession of Mrs. Eubanks at the time of her death. The chancery court held the certificate to be part of the estate, there having been no completed gift to Doyle Thomas. We agree with the chancery court.

At the time of Mrs. Eubanks' death the certificate was in her possession and was cashed by the administratrix of her estate on April 6, 1974 before Thomas filed his suit. The proceeds of the certificate thus passed from the Mechanics Bank which had no further liability on the certificate because it paid the proceeds to the administratrix. Sections 75-3-603 and 81-5-63 Mississippi Code Annotated (1972).

A final decree in the estate of Mrs. Eubanks was signed on November 14, 1974 directing that the proceeds of the certificate of deposit which had been collected by the administratrix be retained by the administratrix pending further orders of the court. Thomas filed his bill of complaint on July 5, 1974. The administratrix and the Mechanics Bank filed their answers which included affirmative defenses and a plea in bar. The case was heard on the plea in bar on November 10, 1976 resulting in a decree of November 17, 1976 adjudging that the certificate was a part of the estate of Mrs. Eubanks.

Thomas contends that he was entitled to the certificate of deposit under the provisions of section 81-5-63 Mississippi Code Annotated (1972). 1 The appellees contend that the administratrix of Mrs. Eubanks' estate was the holder of the certificate of deposit and had the right to cash it under the provisions of the Uniform Commercial Code. We are faced with the problem of reconciling section 81-5-63 Mississippi Code Annotated (1972) with the Uniform Commercial Code insofar as the Uniform Commercial Code affects certificates of deposit. In the case of Surles v. State of Miss., 357 So.2d 319 (Miss., handed down April 12, 1978) we stated:

It is well settled that '. . . statutes which deal with the same subject matter, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other so as to give force and effect to each . . . .' McCullen v. State ex rel. Alexander, 217 Miss. 256, 267, 63 So.2d 856 (1953). We also have stated that '(t)he words, phrases and sentences of a statute are to be understood as used, not in any abstract sense, but with due regard to the context, and in that sense which best harmonizes with all other parts of the statute.' State ex rel. Patterson v. Board of Supervisors of Warren County, 233 Miss. 240, 271-72 102 So.2d 198 (1958), quoting 82 C.J.S. Statutes § 348 (1953).

If we adopt the contention of Thomas, then provisions of the Uniform Commercial Code pertaining to certificates of deposit would be rendered meaningless. In order to resolve this question we should first examine our decisions relating to section 81-5-63.

One of our decisions under 81-5-63 holds that where a deposit is made in the name of two persons, payable to either, the statutory presumption, in absence of evidence to the contrary, is sufficient to establish right of survivor to the deposit. Re Lewis, 194 Miss. 480, 13 So.2d 20 (1943). This case dealt with an ordinary checking account in a bank and overruled Godwin v. Godwin, 141 Miss. 633, 107 So. 13 (1926).

In Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798 (1946) we held that money deposited to the credit of depositor's mother subject to check by the depositor only belonged to his estate upon his death in the absence of substantial evidence that depositor clearly intended to create an account with essential elements of joint ownership and supervivorship. F. M. Leverette deposited $5100 to the credit of his mother, and the deposit slip which evidenced the deposit showed that the deposit was to the credit of Mrs. Annie C. Leverette, the depositor's mother, but it bore the notation on its face made by the cashier at the direction of the depositor as follows:

'This A/C subject to check by F. M. Leverette at any time,' and the signature card, contemporaneously taken to cover the account, carried the statement: 'Authorized signatures, F. M. Leverette, subject to check by F. M. Leverette at any time.'

The Court stated:

F. M. Leverette died on April 4, 1944, and appellee was duly appointed administratrix of his estate. On May 10, 1944, she filed her bill as administratrix to have the deposit declared the property of the estate. Upon final hearing a decree was entered in accordance with the prayer of the bill, and we think the court was correct.

It is well settled that a person may make a gift in severalty to another by making a deposit of the subject of the gift in a bank to the credit of the donee provided the donor in so doing retains no such control over the deposit as will enable him to withdraw it for his own personal uses or purposes. If he retains a control such as mentioned, and as was retained in the present case, the transaction will be ineffective as a gift in severalty and the deposit will remain the property of the depositor. Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Yates' Estate v. Alabama-Mississippi Conference Ass'n, 179 Miss. 642, 176 So. 534; Smith v. Taylor, 183 Miss. 542, 184 So. 423; 32 Am.Jur. Gifts, Sec. 101; 38 C.J.S. Gifts § 49.

It is equally well settled that a person may make a gift in joint tenure by making a deposit of the subject of the gift in a bank in such a manner that it shall stand to the credit, as joint owners, of the donor and the donee, as where, for illustration, John Doe makes a deposit to the credit of 'John Doe or Richard Roe,' which under the statute, Section 5205, Code 1942, Section 3809, Code 1930, would raise the presumption that the deposit was intended to be in joint ownership, and by the further force of the statute, subject to withdrawal by either of the joint owners. Precise form is not essential if and when formal deficiencies are supplied by definite proof; so that when the facts, well proved, are sufficient to disclose that there was a clear intention to create a right which embraces the essential elements of joint ownership and survivorship in respect to the particular bank deposit, or account, the intention so proved will be given effect and the survivor held entitled to the fund. Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20. (199 Miss. at 656, 657, 23 So.2d at 799).

The Court held that the reasonable inferences to be drawn from the evidence indicated that the depositor did not intend to create an account which embraced the essential elements of joint ownership and survivorship, but that he intended exactly what he did, namely, to make an ostensible deposit in the sole name of another retaining dominion over it for his own uses.

In Shearin v. Coleman, 201 Miss. 193, 28 So.2d 841 (1947), suggestion of error overruled March 17, 1947, we held that a checking account in the name of Mr. or Mrs. J. H. Barrow created joint ownership with the right of survivorship in an account under the provisions of section 5205 Mississippi Code Annotated (1942). We also held that three time certificates issued to Mr. or Mrs. J. H. Barrow, payable to the order of either, or survivor, also created the presumption that the time certificates created joint ownership with the right of survivorship under section 5205.

In Myers v. Laird, 230 Miss. 675, 93 So.2d 828 (1957) we held that a certificate of deposit payable to Fannie B. Regan 2 or Ellis Brumfield became the property of Ellis Brumfield upon the death of Mrs. Myers and was no portion of her estate.

Mrs. Fannie B. Regan Myers executed a warranty deed which conveyed to her niece, Jerry Nell Laird, an 80 acre farm and reserved a life estate in the grantor. Mrs. Myers took the deed to her brother, Ellis Brumfield, and advised him that it was a deed to Jerry Nell Laird with instructions to keep it to be delivered after her death. Mrs. Myers had a lock box in the Tylertown Bank and when she handed the deed to her brother, she also gave him a key to the lock box which contained a joint certificate of deposit payable to her or her brother. She did not tell him to place the deed in the lock box. When Mrs. Myers gave her brother a key to the lock box this constituted constructive delivery of the certificate of deposit to her brother.

The only two cases involving certificates of deposit are Shearin and Myers. In Shearin the certificates of deposit were issued in the name of Mr. or Mrs. J. H. Barrow, payable to the order of either, or survivor ; in Myers, the certificate of deposit was delivered to the surviving payee. Both cases are different factually from the case at bar and were decided before the Uniform Commercial Code was adopted.

The certificate of deposit in the case before the Court represented a...

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14 cases
  • Cooper v. Crabb
    • United States
    • United States State Supreme Court of Mississippi
    • September 11, 1991
    ...embraces the essential elements of joint ownership and survivorship in respect to the particular ... deposit. Thomas v. Estate of Eubanks, 358 So.2d 709, 711 (Miss.1978), quoting Leverette, 199 Miss. at 657, 23 So.2d at 799. Subject to what we say below, the rights of the parties are contro......
  • Estate of Stamper
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    • United States State Supreme Court of Mississippi
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    ...conclusive or rebuttable? and, if rebuttable, by what? and what quality of writing is needed to create it? See, e.g., Thomas v. Estate of Eubanks, 358 So.2d 709 (Miss.1978); Myers v. Laird, 230 Miss. 675, 93 So.2d 828 (1957); Shearin v. Coleman, 201 Miss. 193, 28 So.2d 841 (1947); Leverette......
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    • United States State Supreme Court of Mississippi
    • December 14, 2017
    ...So.3d at 1066. Delivery—either actual or constructive—is an essential element to an inter vivos gift's validity. Thomas v. Eubanks' Estate , 358 So.2d 709, 713 (Miss. 1978). Arguably, the foundational element of a valid inter vivos gift is its unconditional delivery, "in such manner that th......
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