Vaughn v. Vaughn

• Decision Date: 07 March 1960
• Docket Number: No. 41398,41398
• Citation: Vaughn v. Vaughn, 238 Miss. 342, 118 So.2d 620 (Miss. 1960)
• Parties: Mrs. Inez Pickett VAUGHN, Executrix of the Estate of E. J. Vaughn, Deceased, et al. v. Houston L. VAUGHN, Sr., et al.
• Court: Mississippi Supreme Court

Page 620

118 So.2d 620

238 Miss. 342

Mrs. Inez Pickett VAUGHN, Executrix of the Estate of E. J Vaughn, Deceased, et al. v. Houston L. VAUGHN, Sr., et al.

No. 41398.

Supreme Court of Mississippi.

March 7, 1960.

Gipson, Gipson & Wiley, Meridian, for appellants.

Wilbourn, Wilbourn & Lord, Gilbert & Cameron, Meridian, for appellee.

ETHRIDGE, Justice.

This appeal from a decree of the Chancery Court of Lauderdale County involves the construction of a will, a joint tenancy in personalty, and certain restrictions placed by the chancellor upon the life tenant.

E. J. Vaughn died on January 13, 1958. He left surviving him his widow and second wife, the appellant, Mrs. Inez Pickett Vaughn, and three adult children by his first wife, the appellees. His will was duly probated and administered by the executrix named in it, his widow. He first bequeathed to his adult children $1,000 each. He devised to his wife a life estate in their residence, certain lands and personal property, with remainder in equal parts to his children. The will then stated: 'I will, devise and bequeath unto my said wife the entire residue of my property of every kind, and any of same that is not consumed by her in her lifetime at her death to go to my said three children, share and share alike, or to the survivor, or survivors of them as the case may be * * *'

After administration, the executrix filed her final account. Appellees, testator's children by his first marriage, filed a petition for construction of the will, and objections to closing and disposition of estate and discharge of executrix. After a lengthy hearing, the chancery court held that a note and deed of trust executed by the Highland Baptist Church to Vaughn and wife, or the survivor of them, was the property of the estate rather than the widow. It held the residuary clause of the will vested in the widow a life estate in money and personalty, with remainder to the children, but, since testator intended her to use the residue for support, the trial court awarded her out of it the sum of $3,000 per year. For protection of the remaindermen, the court declined to close administration of the estate and to discharge the executrix, but kept it open under its supervision, although it approved the final account as amended. Mrs. Inez Pickett Vaughn appealed as executrix and individually. Two main issues are presented.

I.

E. J. Vaughn was a building contractor. On May 2, 1954 the Highland Baptist Church approved a resolution which recited that Vaughn had offered to constructa residence for the church and to loan it sufficient funds to complete the same, the loan to be payable in semi-annual installments of $500, over a period of five years, at four per cent interest; that the church accepted the offer, and its property trustees were authorized to enter into a written contract with Vaughn for such construction. When completed, the trustees were authorized to execute and deliver to Vaughn a promissory note in the amount of the loan made by him, and to deliver to him a deed of trust securing the note. Thereafter Vaughn advanced the money and completed the residence. Pursuant to this resolution, the church trustees on September 1, 1954 executed 'to the order of E. J. Vaughn and (Mrs.) Inez Pickett Vaughn, or to the survivor of them', a note in the sum of $15,000, and a deed of trust on the property, naming as beneficiary 'E. J. Vaughn and Mrs. Inez Pickett Vaughn, or the survivor of them.'

In her inventory and final account the executrix included this note and deed of trust as an asset of the estate. However, the executrix later filed a 'second amended final account' in which she asserted that she, individually, was the owner of the note and deed of trust as the surviving joint tenant, and asked the court to so adjudicate. At the hearing no evidence was offered concerning these instruments. The chancery court held that the testator had not made a gift of the note and deed of trust to his wife, although it recognized that this was a 'very narrow question'.

Appellant asserts that she, individually, is the owner of the note and deed of trust as the surviving joint tenant. This involves two questions, first, whether the words used are sufficient to create a joint tenancy with the right of survivorship and not a tenancy in common. We think they are.

Miss.Code 1942, Sec. 834 does not apply to mortgages or to choses in action. Code Sec. 5205 is not applicable to the present facts. It protects banks in paying out funds in joint accounts. Stewart v. Barksdale, 1953, 216 Miss. 760, 63 So.2d 108. It creates a presumption that the deposits were of joint ownership with right of survivorship. Shearin v. Coleman, 1949, 201 Miss. 193, 28 So.2d 841. The cases dealing with United States savings bonds are not pertinent, since they are controlled largely by Federal statutes and regulations. See Myers v. Laird, 1957, 230 Miss. 675, 93 So.2d 828, 831.

The distinguishing characteristic of a joint tenancy is the right of survivorship. A provision for survivorship is strong evidence that a joint tenancy is created. 48 C.J.S. Joint Tenancy Sec. 3d p. 919.

In Wolfe v. Wolfe, 1949, 207 Miss. 480, 42 So.2d 438, the deed conveyed a lot 'unto Willis Wolfe & Della Wolfe and the survivor of them.' The court held this was an estate in joint tenancy; it was impossible to have the right of survivorship in an estate in common; and the parties expressly intended to create that right. The words used in Wolfe are substantially similar to those in the instant note and deed of trust. We think the reasons expressed in that case are sound and apply here. In brief, the note and deed of trust used words which create a joint tenancy with right of survivorship.

The remaining question is whether the delivery of these instruments by the church trustees to E. J. Vaughn, in whose possession they were at the time of his death, was sufficient to vest a right of joint tenancy in the appellant widow.

Although there was no testimony to that effect, the fact that the note and deed of trust were made to Vaughn and his wife or the survivor of them renders it manifest that Vaughn must have requested the church trustees to execute the instruments in that way. He must have intended this type of joint tenancy with survivorship. Appellees argue there was no completed gift by delivery of these instruments from Vaughn to his wife. The promissory note for which the deed of trust was security, was a negotiable instrument. An instrument may be payable to the order of two or more payees jointly, and their survivor. 10 C.J.S. Bills and Notes Sec. 128; 8 Am.Jur., Bills and Notes, Secs. 310, 311. The title and right to enforce payment vests in the surviving joint tenant by virtue of her survivorship. Ibid., Sec. 311; Ehrlich v. Mulligan, 1928, 104 N.J.L. 375, 140 A. 463, 57 A.L.R. 596; Annotation, 1928, 57 A.L.R. 600.

Moreover, the delivery of a note to one of two or more payees will operate as a delivery to all. 10 C.J.S. Bills and Notes Sec. 78e, p. 514; Spaulding v. First National Bank, 1924, 210 App.Div. 216, 205 N.Y.S. 492, affirmed 239 N.Y. 586, 147 N.E. 206. Cf. Allen v. Tate, 1881, 58 Miss. 585; Annotation, 1959, 64 A.L.R.2d 8.

In brief, we conclude that the delivery of the note and deed of trust to one of the joint payees, E. J. Vaughn, constituted also a constructive delivery of these instruments to the other payee, the wife. Vaughn held these instruments both for himself and for the joint payee, his wife. Upon his death, she as the surviving joint tenant, became vested with full title to them. That part of the lower court's decree holding to the contrary is reversed, and title to the note and deed of trust are adjudged to be in Mrs. Vaughn.

II.

The quoted residuary clause in the will was correctly held by the chancery court to vest in Mrs. Vaughn a life estate with a limited or restricted power of disposition for her support and maintenance, and to vest a remainder in the three children, appellees.

The governing principles are summarized in 33 Am.Jur., Life Estates, Etc., Sec. 39: 'Limitation Over of What Remains after Indefinite Gift Coupled with Limited or Qualified Power of Disposal.--It is a general rule, followed by the courts with practical unanimity, that where there is a devise or bequest to one in general terms only, expressing neither fee nor life estate, and a subsequent limitation over of what remains at the taker's death, if there is also given to the taker an express or implied power of disposition which is not...