Opinion
No. 40932.
December 1, 1958.
1. Appeal — evidence — review — Supreme Court required to affirm decree if supported by substantial evidence.
Supreme Court on appeal was required to determine whether or not decree of Chancellor was manifestly wrong or whether it was supported by substantial evidence, and Supreme Court was required to affirm the decree if supported by substantial evidence, even though Supreme Court if it had passed on the case originally would have found differently.
2. Joint tenancies — joint savings account — evidence — sustained decree in favor of alleged joint tenant.
In suit by executor to recover from brother-in-law of deceased testatrix proceeds of check from life insurance company in payment of policy, in which testatrix was named beneficiary, on ground that brother-in-law after death of testatrix transferred purported joint savings account to himself and later withdrew it, and on ground that neither proof of death given to company, nor endorsement on check in settlement of policy, nor joint control agreement bore the genuine signature of testatrix and that she in fact did not sign them, evidence sustained decree in favor of brother-in-law.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Amite County, F.D. HEWITT, Chancellor.
Gordon Gordon, Liberty; Clay B. Tucker, Woodville, for appellant.
I. The Court erred in overruling appellant's objection to Mrs. H.L. Van Norman testifying after she remained in the court room during the testimony for appellant, when the rule had been invoked and was in effect.
II. The Court erred in finding and adjudicating that the signature of Mamie T. Van Norman on the last will and testament differs from the signature of Mamie T. Van Norman on the proof of death, the signature of Mamie T. Van Norman appearing as the endorser on check No. B-009904 of the New York Life Insurance Company and the signature of Mamie T. Van Norman appearing on the signature card of the Joint Savings Account No. 1774, in the First Federal Savings and Loan Association of McComb, and then dismissing the bill of complaint on the merits, thereby denying appellant the relief prayed for.
III. The Court erred in finding and adjudicating that appellee is entitled to the money either as a gift inter vivos or causa mortis. Gidden v. Gidden, 176 Miss. 98, 167 So. 785; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Raley v. Shirley, 228 Miss. 631, 89 So.2d 636.
IV. The decree of the Court is against the great weight of the evidence and contrary to the law. Crabb v. Comer, 190 Miss. 289, 200 So. 296; Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Van Zandt v. Van Zandt, 227 Miss. 528, 86 So.2d 466.
Roach Jones, McComb; T.F. Badon, Liberty, for appellee.
I. Cited and discussed the following authorities: Bradbury v. McClendon, 119 Miss. 210, 80 So. 633; Duling v. Duling's Estate, 211 Miss. 465, 52 So.2d 39; Edwards v. Jefcoat, 230 Miss. 56, 92 So.2d 342, 37 A.L.R. 2d 1222; Ivy v. Geisler, 213 Miss. 212, 56 So.2d 501; Jefferson v. Walker, 199 Miss. 199, 24 So.2d 343; Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Sharp v. Learned, 202 Miss. 393, 32 So.2d 141; Shearing v. Coleman, 201 Miss. 193, 28 So.2d 841; Stewart v. Barksdale, 216 Miss. 760, 63 So.2d 108; Thames v. Thames, 222 Miss. 617, 76 So.2d 707; Ware's Estate, 218 Miss. 694, 67 So.2d 704.
This suit was brought by the executor of the Estate of Mamie T. Van Norman, deceased, for the benefit of her devisees under a last will and testament executed by her on August 15, 1955, wherein Tom Smith was duly appointed to execute the will.
W.L. Van Norman, the husband of Mrs. Mamie T. Van Norman, died July 23, 1955, after which the above mentioned will was duly executed by Mrs. Mamie T. Van Norman, and she subsequently died on September 24, 1955.
W.L. Van Norman had a life insurance policy with the New York Life Insurance Company in which his wife was named as beneficiary. After his death H.L. Van Norman, who was a brother of the deceased W.L. Van Norman, obtained a proof of death and had the same filled in by an insurance agent in Liberty, Mississippi. The same purports to have been signed by Mamie T. Van Norman on August 12, 1955, and it was mailed on or after that date to the New York Life Insurance Company and was evidently forwarded by the home office to its Jackson, Mississippi, Branch, where it was received on September 2, 1955, after which on September 8, 1955, the Jackson Branch office issued a check of the Company for $1,031.71 to Mamie T. Van Norman. This check was purportedly endorsed by Mamie T. Van Norman and was paid on September 14, 1955. It was deposited in First Federal Savings Loan Association of McComb, Mississippi, under a joint control agreement to the account of H.L. Van Norman and Mrs. Mamie T. Van Norman, and the usual joint control agreement was signed by H.L. Van Norman and was purportedly signed by Mrs. Mamie T. Van Norman on September 12, 1955, after which the First Federal Savings Loan Association sent the check in for collection.
The executor by this suit seeks to recover from H.L. Van Norman the proceeds of said check of the New York Life Insurance Company on the ground that H.L. Van Norman, after the death of Mrs. Mamie T. Van Norman, transferred the purported joint savings account to himself and later withdrew it, and on the further ground that neither the proof of death nor the endorsement on the check in settlement of the policy nor signature on the joint control agreement was the genuine signature of Mrs. Mamie T. Van Norman and that she in fact did not sign the same.
Three handwriting experts testified in this case. Two of them were introduced by the appellant and they said definitely that in their opinion none of the signatures in question were the genuine signature of Mrs. Mamie T. Van Norman. The other handwriting expert testified that he had finally reached the conclusion that the same person signed the proof of death and the joint control agreement as the person who executed the known signatures of Mrs. Mamie Van Norman, but he was unable to reach any positive opinion as to the signature on the check.
Mrs. H.L. Van Norman, the wife of appellee, testified that she was present on each occasion when Mamie is alleged to have signed the proof of death, the endorsement on the check and the joint control agreement.
The complainant made a motion for a special finding of facts and law in this case and the chancellor found as a fact that the signature of Mrs. Mamie T. Van Norman on the check of the New York Life Insurance Company, as endorser, and the signature appearing on the signature card of the joint savings account in the First Federal Savings Loan Association were different from the known genuine signatures of Mrs. Mamie T. Van Norman but then he made an additional finding that due to the direct and positive testimony of Mrs. H.L. Van Norman who said that she was present when the deceased endorsed the insurance check, he would dismiss the bill of complaint and find for the defendant, which he accordingly did in his final decree.
(Hn 1) We unhesitatingly say that if we were passing on this proposition as an original finding, we would have found differently, but that is not the situation which confronts us. We are not passing upon this case originally but are to determine whether or not the decree of the chancellor is manifestly wrong and whether it is supported by substantial evidence. (Hn 2) After a full consideration we have reached the conclusion that there was evidence which the chancellor believed and on which he based his finding, and we are unable to say that he was manifestly wrong. Consequently the decree appealed from must be affirmed.
The appellant argues that the transfer of the money in the First Federal Savings Loan Association was a gift inter vivos or causa mortis, but we do not think there is any merit in this argument for the reason that the money was in the Savings Loan Association from the date of its deposit until the date of death of Mrs. Mamie Van Norman and during that entire period of time she had the right under the joint control agreement to withdraw every penny of it. Hence it was not a gift.
The decree of the lower court must therefore be affirmed.
Affirmed.
McGehee, C.J., and Holmes, Ethridge and Gillespie, JJ., concur.