Summary
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.
Summary of this case from Thomas v. Estate of EubanksOpinion
No. 36305.
January 27, 1947. Suggestion of Error Overruled March 17, 1947.
1. HUSBAND AND WIFE.
Where checking account and certificates of time deposit were in names of both husband and wife and were payable to order of either or survivor, a presumption arose that both deposits created joint ownership with right of survivorship (Code 1942, secs. 5205).
2. HUSBAND AND WIFE.
Evidence with respect to ownership of funds in joint checking account and represented by certificates of time deposit in names of husband and wife and payable to order of either or survivor was insufficient to overcome statutory presumption of joint ownership with right of survivorship (Code 1942, sec. 5205).
APPEAL from the chancery court of Lowndes county. HON. T.P. GUYTON, Chancellor.
Daniel Magruder, of Starkville, and W.P. Stribling, of Columbus, for appellants.
The joint checking account and the joint certificates of time deposit became the absolute property of Mrs. Ada M. Barrow by operation of the principle of joint tenancy with survivorship, and by virtue of a written contract as to the time certificates.
Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462; Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798; In re Lewis Estate, 194 Miss. 480, 13 So.2d 20; Rhorbacker v. Citizens Building Ass'n Co., 138 Ohio Stat. 273, 34 N.E.2d 751, 135 A.L.R. 988; Matthews v. Moncrief, 77 App. D.C. 221, 135 F.2d 645, 149 A.L.R. 857; Beach v. Holland (Ore.), 142 P.2d 990, 149 A.L.R. 866; Code of 1942, Sec. 5205; 1 Restatement of the Law of Contracts, Secs. 128, 132; 135 A.L.R. 993, citations.
John F. Frierson, of Columbus, for appellees.
The finding of the chancellor on conflicting evidence will not be disturbed in the absence of reversible error in the record.
Neno v. Crosby et al., 174 Miss. 28, 163 So. 678.
The fact finding of the chancellor on the facts, on conflicting evidence, is binding on this Court.
Langston et al. v. Farmer, 176 Miss. 820, 170 So. 233.
The testimony is conflicting; and the rule is well settled that decisions of the chancellor on conflicting evidence are binding on this Court; also, where there are two or more reasonable theories to be deduced from the testimony that the chancellor is entitled to draw a conclusion and his judgment thereon is binding unless manifestly wrong.
Stroud v. Loper, 190 Miss. 168, 198 So. 46.
The doctrine of "stare decisis" requires that a question concerning substantive law shall be deemed settled after it is decided by the Supreme Court. If the certificates of deposit were intended to carry the money absolutely to Mrs. Barrow at the death of the testator, it violated the rule of stare decisis and was therefore unlawful.
Godwin v. Godwin, 141 Miss. 633, 107 So. 13; Pace v. Pace, 107 Miss. 292, 65 So. 273; Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247, 249; Bank of Philadelphia v. Posey, 130 Miss. 825, 95 So. 134; Clanton v. Callender, 198 Miss. 614, 22 So.2d 487, 489; Bowen v. Ellzey (Miss.), 108 So. 597; Bump v. Union H.S. Dist. No. 3, 144 Or. 390, 24 P.2d 330; Words Phrases (Per. Ed.), 809; 21 C.J.S. 329, Sec. 194.
If the certificates of deposit standing as they did on December 1, 1942, were intended to give the money absolutely to Mrs. Barrow, instead of a life estate under the will, then same were either an attempt at a revocation pro tanto of the will or an attempt at a gift inter vivos, neither of which could have been valid.
28 R.C.L., Revocation, Secs. 123, 124, 125, 127.
When the facts, well proved, are sufficient to disclose that there was a clear intention to create a right which embraced the essential elements of joint ownership and survivorship in respect to the particular bank deposit or account, then the intention so proven will be given effect and the survivor held entitled to the fund.
Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462; Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798; In re Lewis Estate, 194 Miss. 480, 13 So.2d 20.
Argued orally by G. Odie Daniel and Augustine Magruder, for appellants, and by John F. Frierson, for appellees.
This suit involves a contest between the beneficiaries under the will of J.H. Barrow, who died in 1942, and the heirs at law of Mrs. J.H. Barrow, who died intestate in 1944. For the purpose of the hearing, the two estates were combined since the beneficiaries under the will asserted that the estate of Mrs. Barrow did not include the funds here involved, which, it was claimed, passed under the husband's will.
The petition sought inter alia to establish ownership of certain funds on deposit in a local bank. The decree adjudicated several matters as to which no error is predicated. From that part of the decree dismissing appellants' petition for adjudication of their ownership of these bank funds, this appeal is taken.
The contest is over the balance of a checking account, and three certificates of time-deposit, in the amounts of $327.89 and $30,300 respectively. The checking account was in the name of "Mr. or Mrs. J.H. Barrow." Each of the three time certificates were drawn in favor of "Mr. or Mrs. J.H. Barrow," and were "payable to the order of either or survivor."
It is clear, therefore, that under Code 1942, Section 5205, a presumption arises that both deposits created joint ownership with the right of survivorship. In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798.
The controversy, therefore, narrows to the sufficiency of the evidence adduced to overthrow the presumption by disclosure of a contrary intention.
The will of Mr. Barrow did not mention the bank funds, nor the certificates. All property was left to his wife during her life, with the privilege of complete disposal. Remainder rights were devised and bequeathed to Ida Barrow, a niece, and to Maudie L. Coleman, to whom he assertedly stood in loco parentis. To the former, he bequeathed (with other devises) "the sum of ten thousand dollars in cash."
There were insufficient funds in the estate of J.H. Barrow to pay the legacy mentioned. This was indicated by the petition for appointment of the administrator, which alleged that the "personal estate will be less than $500." Bond was fixed and the administrator, B.F. Coleman, a brother-in-law of Mrs. Barrow, qualified under this assumption. Mr. Coleman was also appointed administrator of the estate of Mrs. Barrow, and in the petition for such appointment it was set out that "the said Mrs. Ada M. Barrow left a personal estate of approximately $28,000." Bond and qualification took such representation into account. Petitioners and the administrator in both cases seem to have been aware of the certificates of deposit and the account, and the inventory of Mrs. Barrow's estate included both items.
Subsequent to the death of Mr. Barrow, Ida E. Barrow was given authority by Mrs. Barrow to draw upon her account by checks signed "Mrs. J.H. Barrow by Miss Ida E. Barrow." During the interval between the deaths of Mr. Barrow and Mrs. Barrow the certificates of deposit were renewed in Mrs. Barrow's name, and she withdrew $100 therefrom.
The president of the depository bank testified that both accounts were carried in the name of "Mr. or Mrs. J.H. Barrow" and that it "was their wishes." Interest from the time certificates was deposited in the joint bank account.
After testimony as to the bank accounts and after hearing the testimony of the petitioners (appellants), and the testimony of some seven witnesses for the defendants or respondents, the chancellor held that "the evidence thus far throws no light on this proposition," referring to the ownership of the funds. Thereafter, the only testimony produced was that of the vice-president of the depository bank who testified that the will of Mr. Barrow and the time certificates were kept, and found, together after the death of Mr. Barrow, in a box in the bank's vault, and that the certificates were renewed in Mrs. Barrow's name.
Miss Ida E. Barrow testified that she had lived with Mr. and Mrs. Barrow and took care of their home while they operated a store. This store was considered by her to belong to Mr. Barow, but they "ran it together," and witness stated" I guess she had as much right in the store as he did, they didn't divide nothing, they both went as one, whatever he said went with her."
B.F. Coleman testified that he knew the contents of Mr. Barrow's will, and upon cross-examination sought to explain the respective estimates of the value of the two estates of both of which he was appointed administrator, and prepared inventories. We need not decide the asserted issue of estoppel arising out of these circumstances.
We need only add that appellees' argument seeks favorable inferences from the incident that the legacy of $10,000 to Ida E. Barrow could have been made under no other assumption than that Mr. Barrow considered the time certificates to be his own. Yet the will was written approximately 17 years before testator's death. What his financial position was at that time is not shown, nor that the funds so invested were other than the joint earnings of both husband and wife.
The test is not that applicable to gifts as it appears to have been adjudged by the learned chancellor. Appellants' theory was that the account was joint and that it was immaterial whose funds were originally so deposited. In re Lewis Estate, supra. The finding that the joint account was created only "for the convenience in handling the Estate of Mr. Barrow and for his sole benefit and was not intended as a gift" borrows from the Lewis case only part of its shadow and ignores its substance. There is no evidentiary support for the assumption that the original deposit was made with funds belonging only to Mr. Barrow.
We do not think that appellee's proof can prevail against the statutory presumption supported as it is by evidence more substantial than that adduced by appellees. We decide only the issue of the ownership of these funds and amend the decree only to that extent.
Reversed and decree for appellants.