Opinion
No. 38639.
March 2, 1953.
1. Joint tenancies — deposits in saving association — survivorship agreement.
The deposit of funds in a federal savings and loan association accompanied by a written agreement entered into by the adult depositor and a minor, accepted by the association, that the funds so deposited should be the joint property of the depositor and the minor as joint tenants with full rights of survivorship, and not as tenants in common, was sufficient, on the death of the adult joint tenant, to vest full title to the funds in the minor survivor.
2. Joint tenancies — descent and distribution.
A joint tenancy such as above mentioned does not change the laws of descent and distribution.
Headnotes as approved by Arrington, J.
APPEAL from the chancery court of Hinds County; J.C. STENNETT, Special Chancellor.
Richard A. Billups, Jr., for appellant.
I. Sec. 5205, Code 1942, does not include share accounts in a building and loan association and hence raises no presumption under this section that this share account was in joint ownership and subject to withdrawal by the survivor. See Duling, et al. v. Duling's estate, et al., (Miss.), 52 So.2d 39.
The setting up of a joint account with his nine year old daughter could be considered as nothing more than a fatherly whim or fancy with no thought whatsoever of making a completed gift to her and consequently should not be permitted to stand and work an untold hardship on the other minor children and the widow who must assume full responsibility for the support, maintenance and education of all members of the family.
II. So called "joint account with full right of survivorship" agreements should not be permitted to change the laws of Mississippi on descent and distribution, and under the facts in this case no right of possession or title was established in the survivor.
To enable a man to set up such accounts at will, so long as the agreement is signed and delivered, and by this means cut out his widow and children in favor of whomsoever he might choose, then, to prevent such is the very reason for the laws of descent and distribution in every state in the Union. Consider how helpless a wife and mother is to even know, and if she knows, to prevent, a husband from setting up such a joint account with some child, relative or stranger and then, put into such account some or all of his or hers or their money and upon his death see the survivor withdraw the fund with no regard for the rights of the widow, to the fruits of their joint effort or regard for the support and upbringing of their minor children. I can see why the courts would be inclined to approve such joint account-survivor agreements as between spouses but it appears dangerous indeed as a principle of law to permit a spouse to avoid the law of descent and distribution and by the simple means of a joint account-survivor agreement cut off the surviving spouse without a cent from the estate of their joint effort. In the case at bar the money in this share account will be many times over the net amount remaining in the estate from whence will come the only funds available to this widow to maintain a home and raise and educate the other children in the family, if the ruling of the lower court is sustained. See Godwin v. Godwin, 107 So. 13.
On the general subject of deposit of funds belonging to depositor in bank account in name of himself and another, there are extensive annotations in 48 A.L.R. 189; 66 A.L.R. 881; 103 A.L.R. 1123; 135 A.L.R. 993; 149 A.L.R. 897; 1 A.L.R.2d 247; 25 A.L.R.2d 1240.
The record contains an abundance of evidence to show that O.L. Stewart had no intention whatever of making a completed gift to his nine year old daughter and delivering control of and possession of the fund to her. As a matter of fact, the only evidence in the record in favor of survivorship is the execution of the "joint account-survivor" agreement and delivery to the First Federal Savings Loan Association. The pass book was not delivered to her but was found in Mr. Stewart's office and business files. According to witness Davis the main concern of Mr. Stewart was whether he could get his hands on this money when he needed it. The record also discloses that Mr. Stewart was selling and buying trucking businesses and this fund represented by far the major portion of his operating capital as shown by the size of the estate. In fact he was actively engaged in buying another trucking business and moving his family to Memphis at the time of his unfortunate death. This would have taken most, if not all, of the money in this share account. Shirley Ann Stewart furnished none of the money going into this account and exercised no control over it. At all time the account was under the dominion and control of O.L. Stewart who was actively making deposits in it and withdrawals therefrom in the same manner as any operating account of a businessman is handled. Thus, when it is considered that none of these facts were controverted and this case was decided on respondents' motion to dismiss, it appears there is more than sufficient evidence to overcome the one act of signing the agreement and turning it to the First Federal Savings and Loan Association when the share account was opened. In the case of New England Trust v. Paine, (Mass.), 59 N.E.2d 263, we find as follows: "While the contract of deposit is conclusive as between the bank and the other parties thereto, as between the parties other than the bank the form of the deposit does not settle the matter, and it is open to the representative of the estate of the decedent to show by attendant facts and circumstances that he did not intend to make a present completed gift of a joint interest in the account."
Tighe Barksdale, for appellee.
I. The joint tenancy agreement involved is clear and unambiguous and valid in all respects. Stephens, et al. v. Stephens, 193 Miss. 98, 8 So.2d 462; Duling v. Duling's Estate, 211 Miss. 465, 52 So.2d 39; Illinois Trust and Savings Bank v. Van Black, 310 Ill. 185, 141 N.E. 546; 48 C.J.S., Joint Tenancy, Sec. 3e, p. 919; 9 C.J.S., Banks and Banking, 595, Sec. 286, 1416, Sec. 994.
II. The fact that appellee did not contribute any funds to this account and did not draw upon the account does not in any way affect her interest therein. In re Culhanes Estate, 2 At.2d 567; Rockefeller v. Davenport, et al., 277 Mass. 105, 177 N.E. 856; Mardis v. Steen, 293 Pa. 13, 141 A. 629; 48 C.J.S., Joint Tenancy, 925, Sec. 3(4); In re Reynolds' Estate, 163 N.Y.S. 803, 809.
III. Possession of pass book by Mr. Stewart did not divest appellee of her interest in the funds. Illinois Trust and Savings Bank v. Van Black, supra.
IV. These funds were a gift from O.L. Stewart to appellee. Stephens, et al. v. Stephens, supra; 27 Am. Jur., Infants, 750-751, Sec. 6; Brown v. Long Bell Co., 138 Miss. 548, 103 So. 353; 48 C.J.S., Joint Tenancy, 926, Sec. 3.
V. Reply to appellant's contention that the Mississippi statute pertaining to joint accounts does not obtain in this case. Sec. 5205, Code 1942; East Rutherford Savings, Loan and Building Association v. McKenzie, et al., 87 N.J. Eq. 375, 100 A. 931; Leonard v. Tulsa Building and Loan Association, 184 Okla. 558, 88 P.2d 875; Duling v. Duling's Estate, supra.
VI. The joint tenancy agreement does not change the law of descent and distribution. Godwin, et al. v. Godwin, et al., 141 Miss. 633, 107 So. 13; Stephens v. Stephens, supra; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Ladner, et al. v. Ladner, et al., 128 Miss. 75, 90 So. 593; Williams, et al. v. Bailey, 174 Miss. 760, 165 So. 439.
Mrs. Annie Lemons Stewart, widow of O.L. Stewart, deceased, and administratrix of his estate, filed a petition in the Chancery Court of Hinds County, Mississippi, asking that the First Federal Savings and Loan Association be required to turn over to her as administratrix the sum of $28,719.08, held by them in a joint account in the name of O.L. Stewart or Shirley Ann Stewart. Henry E. Barksdale was appointed as guardian ad litem of Shirley Ann Stewart, a minor, and resisted this petition. The lower court denied petitioner the relief prayed for and held that the money in said account was the sole property of Shirley Ann Stewart, and from this decree, the petitioner has appealed.
It appears from the record herein that on August 9, 1951, O.L. Stewart deposited certain funds in the First Federal Savings and Loan Association to the joint account of O.L. Stewart and Shirley Ann Stewart, and he and Shirley Ann executed a joint account agreement with full right of survivorship, which instrument was as follows:
"Date August 9, 1951
"No. 14595
"Name Mr. O.L. Stewart or Shirley Ann Stewart
"We hereby apply for membership in the First Federal Savings and Loan Association of Jackson, subject to the laws of the United States, rules and regulations of Federal Home Loan Bank Board and the Charter and By-laws of the Association as they now are or as they may hereafter be amended.
"We further agree and declare that all funds now, or hereafter, paid unto this share account, or full paid certificate, are, and shall be, our joint property and owned by us as joint tenants, with full right of survivorship and not as tenants in common; and upon the death of either of us, any balance in said share account or full paid certificate shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn or re-purchased by, or upon the order of, either of us or the survivor. It is especially agreed that withdrawals or repurchase of funds or shares by the survivor shall be binding upon us, and upon our heirs, next of kin, legatees, assigns, and personal representatives. We acknowledge receipt of pass book or certificate evidencing this account."
It is argued by appellant that Sec. 5205, Supp., Miss. Code 1942, does not include share accounts in a building and loan association and that joint account agreements with full right of survivorship should not be permitted to change the laws of descent and distribution; and under the facts in this case, no right of possession or title was established in the survivor. (Hn 1) The instrument set out above created a joint tenancy with right of survivorship in clear and unambiguous terms and was sufficient to vest title in appellee. This court upheld a similar agreement in Stephens, et al. v. Stephens, 193 Miss. 98, 8 So.2d 462, also in Duling v. Duling's Estate, 211 Miss. 465, 52 So.2d 39.
Section 5205, Supp., Miss. Code 1942, protects banking institutions in paying out funds in a joint account and it is not necessary to decide whether said statute applies to building and loan associations. The funds on deposit with the First Federal Savings and Loan Association have not been paid out and this question is not before us. The above statute in no way limits the right to create a joint tenancy, with right of survivorship in personal property. (Hn 2) Nor does a joint tenancy agreement change the laws of descent and distribution. During the lifetime of O.L. Stewart, he had the right to dispose of his property as he saw fit, or as the Court expressed it in Hiserodt v. Hamlett, 74 Miss. 37, 20 So. 143, "One may do what he will, within legal limits, with his own." In Stephens, et al. v. Stephens, supra, the Court said: "And if gift be an element in the situation, there was an effectual consummation of the gift by way of the delivery of the written instrument to the bank as the performance agent of the donee, as well as of the donor."
Affirmed.
McGehee, C.J., and Hall, Holmes and Lotterhos, JJ., concur.