Record Db

No.

A'r RJCHMOND

NANCY EUGENIA WILKINSON, Appellant,

versus

JOHN WILLIAM WITHERSPOON, INDIVIDUALLY AND AS CO-EXECUTOR, ETC., Appellee.

PETITION FOR APPEAL AND SUPERSEDEAS.

GEORGE E. ALLEN ALLEN,ALLE~ALLEN AND ALLEN

4020 West Broad Street Richmond, Virginia

Counsel for Appellant.

INDEX TO PETITION

Record No. 5966

Page

I. Brief Statement of Proceedings in the Court below. 1• II. Assignment of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . 2•

III. The Question Involved . . . . . . . . . . . . . . . . . . . . . . . . . . a• IV. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . a• V. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . s•

a. The written imtru'lMnt.

It manifestly 01[)1Jears from the tenor of the in­strwment itself that it was intended the part of the one dying should then belong to the other, a;nd the cowrt erred in holding to the contrary . . 8•

b. The parol evidence.

There is nothing in the parol evidence (if com­petent) to indicate an intention contrary to that e(l)pressed in the written instrument . . . . . . . . . . 21•

'VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24• VII. Statements Required by Rules .................. 25•

Table of Oases.

Allen v. Parkey, 154 Va. 739, 149 S.. E. 615 . . . . . . . . . . . . 9* B111rroughs v. Gorma;n, 166 Va. 58, 184 S. E. 174 ........ 10* Drake v. Blythe, 108 Va. 38, 60S. E. 632 .............. 10• King v. Merryrna;n;, 196 Va. 844,

86 s. E. (2d) 141 .................... 1o•, 11•, 12•, 1a• Leonard v. Boswell, 197 Va. 713, 90S. E. (2d) 872 . . . . . . 9• Quesenberry v. Funk, 203 Va. 619,

125 S. E. (2d) 869 .......... 10*, 11•, 12*, 13*, 14*, 15* Roane v. Ro·atne, 193 Va. 18, 67 S. E. (2d) 906 . . . . . . . . . . 9411

Stevens v. Sparks, 205 Va. 128, · 135 s. E. (2d) 140 .......... 15•, 16•, 17*, 18•, 19*, 2o•

W allaoe v. Wallace, 168 Va. 210, 190 S. E. 293 . . . . . . . . 10•

Statutes.

Code of Virginia, 1950: § 6-55 ...................................... 13'*, 14• § 55-20 . . . . . . . ...................... g•' 11.' 21·' 22. § 55-21 .................................. g•, '11•, 22.

I~f THE )

Su~ Court Qf Appeals of fqiilia ·. t " ~ • . . ~ . "

AT IJJOHMOND

,;

Recoud No. 5966 1:

NANCf EUGENI~ WILKINSON, Petitioner,

versus

JOHN WI:{JLIAM WI~HERSPOON, ETC., ~spondent.

PETITION FOR APPEAL.

To The Honorable Chief Justice and Associate Justices oft~ Supreme Co?Jrt of Appeals of Virg~nia:

Your petitioner, Nancy Eugenia Wilkinson, respectfully represents unto Your Hc;>nors t~at she is aggrieved by a cer­tain final decree of the Chancery C01~~t of the .City of Rich­mond entere4 on the 27th day of April, 1964, in the above.;. captioned cause. The original reco'rd is tiled with the Cle1.·k of this Court at Richmond and will be exhibited with this petition. . . . . .

Your petitioner, who was the respondent in the court be­low, will b~ referred to as a,ppella'(bt. T~e plaintiff in the court below will be referred to as appellee.

I. BRIEF STATEMENT OF PROCEEDINGS: IN T}IE COURT BELOW. . .

The appellee filed his bill of complaint in the Chancery Court. of the City of Richmond, requesting the advice and

2 Supreme 1Court of Appeals of Virginia

guidance of the court in the matter of whether a certain 2• joint account •with right of survivorship belonged to ap-

pellant, Nancy Eugenia Wilkinson, or to the .estate of Oscar 0. Hewitt. The appellant c11aved oyer of the writing establishing the account and then demurred. The trial court overruled the demurrer1 and the appellant duly filed her answer. The case was heard upon the testimony of witnesses given in open court and the argument of counsel after which the court entered a decree holding that the account in question was a part of the estate of. the said Oscar 0. Hewitt.2

Appellant duly f}led her notice of appeal and assignment of error.

II. ASSIGNMENT OF ERROR.

1. The court erred in its decree of the 27th day of April, 1964, in holding that, ''The savings account described in the Bill of Complaint is a part of the estate of the said Oscar 0. Hewitt''; because the written contract between the parties shows on its face that the monies on deposit in the account were deposited in the name of the parties as joint tenants with right of survivorship and not as tenants in common, and not as tenants in the entirety, but with the conclusive intent that the monies shall be a gift and a delivery of the funds to the survivor, and there was no other evidence, oral or written,. contrary to the written contract of deposit.

a• •III. THE QUESTION INVOLVED.

The only question involved in this appeal is whether the money on deposit in a savings account with the Franklin Federal Savings and Loan Association in the name of ''Oscar 0. Hewitt and Nancy Eugenia Wilkinson, joint tenants with right of survivorship" is the property of the estate of Oscar 0. Hewitt or the property of appellant, Nancy Eugenia Wil­kinson.

IV. STATEMENT OF FACTS.

On March 2, 1962, Oscar 0. Hewitt, the deceased, opened a joint account with right of survivorship, with the Franklin Federal Savings and Loan Association ·in Richmond, in the name of himself and appellant, who was his niece. At the

IFor opinion overruling demurrer see Clerk's Record, pp ..... ~For final opinion see Reporter's Transcript, pp. 56-57.

Nancy Eugenia Wilkinson v. 3 John William Witherspoon

time of his death (November 17, 1962), the amount in the ac­count was $9, 703.88. Following the death of Mr. Hewitt the bank opened a new account in the name of appellant, Nancy Eugenia Wilkinson and Edwin S. Wilkinson, her husband, and transferred the money to that account, at the direction of appellant who claimed she was entitled to the money by virtue of the provisions of the instrument setting up the ac­count. This instrument reads as follows:

*''Transferred to 33296-61 1-3-63 Account No. 31372-6

A, Hewitt, Oscar 0. Mr. and B, Wilkinson, Nancy Eugenia Mrs. and C, . Type All Names: (Last Name (First Name) Middle Name) as joint tenants with right of survivorship and not as tenants in common, and not· as tenants by the entirety, the under­signed hereby apply for membership and a savings account in the

FRANKLIN FEDERAL SAVINGS AND LOAN ASSOCIATION

and for the issuance of evidence thereof in their joint names described as aforesaid. You are directed to act pursuant to any one or more of the joint tenants' signatures, shown be­low, it is agreed that ·any one or more such person(s) so authorized shall have power to act in all matters related to this account, including, but without limiting the generality of the foregoing, the withdrawal ·in whole or in part of this account, and the pledging of this account in whole or in part as security for any loa.n made .by you to one or ·more .of the undersigned. Any such pledge shall not operate to sever or terminate either in whole or in part the joint tenancy estate and relationship reflected in or established by this contract. It is agreed ·by the signatory ·parties with each other and by the parties with you that any funds ·placed in or added to the account by one one of the ·parties is and shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory ·party or parties to the extent of his or their pro rata interest in the· account. You are authorized to accept checks ·and other instruments for credit to this ac­count, wbether payable to one or more of the pa:rties, and 'to . supply any. needed endorsement. 'You are ·relieved of any liabiltty in connection with ·collection of all items ·~andled by

4 Supreme 10ourt of Appeals of Virginia

you without negligence, and shall not be liable for .asts of you.r agents, sub-agents, or others or f9r any -casualty. Such funds· are not withdrawable until collected . .Any amount not collected, together with any kind of expense incurred relative to the account may be charged to it.

''A fs/ Oscar 0. Hewitt 3025 Noble Ave. Signature (Type) Street City & State Phone ''B jsf Mrs. Nancy Eugenia Wilkinson 6010 Rois Road

Signature (Type) Street City & Street Phone 5• ., 'C ............................... Date Mar 2-62

Signature (Type) Street City & Street Phone

''Note : The correct way to establish a common law tenancy or its .equivalent in any state is to use 'and' in joining ten­ants' names on all evidence of the account. All tenants should sign this . card. Rule out unused signature line.''

The words "transferred to 33296-61" and the date "1-3-62'' indicate that the account was transferred to respondent, Nancy Eugenia Wilkinson. This date was, therefore, placed upon the card after the death of Mr. Hewitt.

The circumstances leading up to and attending the opening of the account are free from controversy. The appellant, Nancy Eugenia Wilkinson, the co-signer of the card setting up the account, was the niece of the decedent, Oscar 0. He­witt; he was very fond of her. He brought her from North Carolina to Richmond and had her take a course in training ~t West brook Sanitorium Nursing School. She remained there at his instance for over a year. Mr. HeWitt came to see her often, talked to her over the telephone many times and had her meet him downtown for luncheon often. He wrote a number of letters acknowledging her kindness to him and ex­pressing his gratitude. After his wife died in December, 1961, appellant was more attentive to him. He visited her almost

every Sunday nighf for dinner. 6• •When he went to the hospital on September 30, 1962,

he 'called her over the telephone and she took him to the hospital. Ue was discharged on October 14th. She visited him in the hospital, took care of his clothing and had his laundry done. When he left the hospital on October 14th she brought him to her home to care for him but he developed a blood clot that night and was readmitted to the hospital where he stayed for an additional thirteen days. She continued to visit him there and look after him and when he left the hospital on· October 27th· she brought him to her· home again and

Nancy Eugenia Wilkinson v. John William Witherspoon

5

took care of him there for approximately two weeks. Theit he went to his home where he had arranged for a yq~ng couple to stay with him. Between that date and the date o~ h:i~ death (about a week) she visited him twice and kept in touch with him by telephone.

For the several years next preceding March, 1962, the date the card was signed, they were on the friendliest terms .. She visited him often, cooked food and took it to him and did other little things for his comfort. He took out an airplane accident policy for her benefit on Aprilll, 1962, for $105,000 and sent it to her. .· ,

Mr. Hewitt was healthy until he went to the hospital. He atte~ded to his own business affairs. Neither the appel­

T" lant nor ""the appellee knew anything about his business or attended to any of it in any way, shape or form. He

was an Accountant and worked at the business regularly un­til about April 15, 1962, and from time to time thereafter following his retiren1ent. In the accounting business he had experience with such cards as the one. evidencing the joint account in this case.

The Franklin Federal Savings and Loan Association where the account was created had a number· of cards to serve the varied interests of their customers. It was the practice of the bank officials to exhibit these cards to customers, explain the nature of them and let the customer select the card which would carry out his intention. He selected the card in evi­dence which contains the language that the· funds deposited to the account '''shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory or parties to the extent of his or their pro rata interest in the account": ·

In addition to the several cards shown to the customers, it was the policy of the institution to show the customers a booklet containing a clear description of the cards and the purpose each was intended to accomplish. These little pamphlets were pi·epared by the bank's attorneys and ap­proved by the United States Savings and Loan League of Chicago ana are· such as are used throughout the fifty

States. · · ' · s• *On the. occasion of the , signing of the ·card, Hewi~t

asked the appellant to come by his home. When she ar­rived he asked her into a room and ·told her to sit down. When .she sat down be placed a card before her on a table and she said, ''What's this? and he kind of giggled or laughed and he said, 'Well, who knows, some day somebody may want

•

6 Supreme ~Court of Appeals of Virginia

to pay some bills.' He asked me to sign the card.'' She asked where she should sign and he pointed to the place for her sig­nature and she signed the card and he took it away with him.

V. ARGUMENT.

a. The writtef~J instrum..ent.

It manifestly appears from the te-nor of the instrum&nt it­self that it was intended the part of the one dying should then belong to the other, afhd the court erred, in holding to the con­trary.

It will be observed that the joint account is opened with this language," As joint tenants with right of survivorship", not merely as joint tenants, and, in the body of the instru­ment it is expressly provided:

''It is ~eed by the signatory parties with each other and by the parties with you (the bank) that any funds placed in or added to the account by any one of the parties is and shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or .their pro rata interest in the account.''

9• •The plain meaning of this language is that when one of the parties made a deposit to the account, such de'­

posit constituted a gift to the other party of the amount .so deposited upon the death of the donor. This language dis;.. tinguishes this case from all the others in the books, parti­cularly in view of Code Sections 55-20 and 55-21. § 55-20 abolishes the doctrine of survivorship between joint tenants as to both personalty and realty. § 55-21 expressly provides, however;

''The preceding section shall not apply to any estate which joint tenants have as executors or trustees, nor to an estate conveyed or devised to persons in their o:wn right when it manifestly appears from the tenor of the. instrument that it was intended the part of the one dying should then- belong to the others. Neither shall it affect the mode of proceeding on . any joint judgment or decree in favor of or on any contract with two or more one of whom dies.'' . . . . .

Nancy Eugenia Wilkinson v. 7 John William Witherspoon

It was held· in LeoMrd v. Boswell, 197 Va. 713, 90 S. E. (2d) 872, that § 55-20 is not applicable where it is manifest from the tenor of the instrument that it is intended that the part of the one dying shall belong to the survivor, and in Allen v. Parkey, 154 Va .. 739, 149 S. E. 615, it was 'held that § 55-21 provides that § 55-20 does not apply if its manifest from the instrument creating the estate that it was intended that the part of the one dying should then belong to the other. Again in Roatne v. Roatne, 193 Va. 18, 67 S. E. (2d) 906, it was held that the pertinent exception in § 55-21 is that the right

of survivorship shall not be abolished •"when it mani-10* festly appears from the tenor of the instrument that it

was intended the part of the one dying should then be­long to the others'', and it was held in Wallace v. Wallace, 168 Va. 210, 190 S. E. 293, that while the purpose of the donor must be plain, when that purpose has been made plain and it is manifest that he intended survivorship, the court will give effect to his intention. To the same effect is Drake v. Blythe, 108 Va. 38, 60 S. E. 632. In Burroughs v. GortrU~~n, 166 Va. 58, 184 S. E. 174, it was conceded that the parties to the original instrument intended that the part of a dying grantee should belong to the survivor and hence a demurrer to the bill was sustained. While the two late late cases of King v. Merryman, 196 Va. 844, 86 S.. E. (2d) 141 and Qu.esenberry ·v. F'IJ/I'I.k, 203 Va. 619, 125 S. E. (2d) 869, were decided against our contention, an examination of those cases will clearly disclose that the decision was based upon the tenor of the instrument and instructions in connection therewith. In J(iJng v. Merryman, the exact holding was that since the tenor of the donor's instructions to the bank and the form of the de­posit did not show the intention to create a tenancy with survivorship, the deposit became a part of the donor's estate.

In the Quesenberry case, it was also held that the rights and interests of the depositors, as between themselves, are

dependent upon whether the owner of the money in­tt• tended to make a •gift to the other or whether the ac-

count was entered in joint form in accordance with a contract or for other purposes. A careful reading of these cases in view of the language of the written instructions in­volved supports our contention fully. The whole tenor of the opinions in these cases is to the effect that while survivorship is abolished by Code Section 55-20, nevertheless, under Code

8 Supreme.iOourt of ;Appeals of :Virginia

Section: 55-21, if it manifestlt. appears from the tenor of ~the instrument that it was intel)ded the patt of the one df.ing should: .then belong to the others, this intention will be. given effect. i .~

Ther~· is nothing in eithe~ of the con~racts in the casd,s re­ferted to which takes the case out of Oode Section 55-20 and bring~. it within the exception .set forth in ·Code Section .fi5-21. A comparison of the instruments construed in the zt,f erry­man and Quesenberry cases. with the. instrument to b'e con­strued in the case now before the court shows that there is no language used in either of those com}l~rable to the language used in the instrument :t;l,ow before the court. The language used by the parties in the present case is so strikingly dif­fer.ent from that used in the Merryrna;n and Quesenberry cases that one is almost forced to the conclusion · that the draftsman of the instrument in the present case had in mind the rulings of the court in the Merryman and Qwesenberry cases when he drafted the instrum~nt now before the court in

the present case. It would .seem that the draftsman was 12• •determined to make it manifest that it was the inten-

tion of the parties that the survivor should take the part of the one dying. Certainly mor.e appropriate language could not ·have been used than that which expressly states that it is agreed that the funds placed in the account ''shall be conclusively intended to be a gift and a delivery at that time of such funds to the other signatory party." Had such language been used in the Merryman and Quesenberry oase·s, those cases would certainly have been decided differently in view of the principles which the court laid down.

In the Merryma;n oase, after an exhaustive consideration of the question, the· court said:

"It seems to be well settled that a bank account may be so fixed that two persons shall be joint owners thereof during their lives, and the survivor take on the death of the other. This may depend upon the terms of the deposit, that is the contract-made with- the bank, or upon the intention of the depositors as disclosed by· their declarations, oral or writ­ten.'' (86 S. E. (2d) at page 148)

''lt is fully cpmpetent for the General Assembly of Vir­ginia to provide by statute what presumptions, if any, shall arise as to the property rights of a· survivor to the funds in joint savings account upon the death of his codepositor. In the absence of such statutory presumptions, we adher~ to the rule that when a person deposits his money in bank to the credit of himself and another, payable to tl1(\ order of either,

Nancy Eugenia Wilkinson v. 9 John William Witherspoon

or the surviv~i-· of them, the rights and interests of the de­positors as between themselves are dependent upon the ques­

tion whether the owner of the money intended •to make 138 a gift t-6·. the other, or whether the account was entered

in joint form in accordance with a contract or for other purposes." (86 S. E. (2d) at page 149)

In the Quesenberry case the question was, as stated by Mr. Justice Whittle :

'' (3) Was the intent manifested in the instrument that the survivor should be the owner as provided in § 55-21, Code of Virginia Y" (at page 871)

In answering this question the court had to pass upon the additional question whether parol evidence was admissible to show the intention of the parties. In passing upon this question he reasoned that the card was ·on a printed· form furnished by the bank; that the wording on the card was the language employed by the bank and clearly set forth the pur­pose of the card, which was for the protection of the bank and was prepared by the bank to comply with Code Section 6-55. That section simply provides: ·

"When a deposit has been made, or shall hereafter be made, in any bank or trust company transacting business iii this State, under the names of two or more persons, payable to either, or payable to the survivor or any survivor, such deposit, or any part thereof, or .any interest or dividend thereon, may be paid to any of such persons, whether the other or others be living or not, and the receipt or acquittance of the person so paid shall be a valid, sufficient and complete release and discharge of the· bank or trust comj>·any for airy payment so made.''

14* *'In discussing this section· he ·specifically states:

''" • • The section was written for the protection of the hank and is not declaratory of the rights of the depositors in the funds as between themselves.'' ·

He then· concludes : ·

"We therefore hold that parol evidence was admissible to show the intent of the person setting' up the 'account.'' (page 873)

10 Supreme 'Court of Appeals of Virginia

The parol evidence showed that the owner of the fund, Coal­son, had been ill for a long period of time ; that he was in­firm and unable to attend to his business affairs; that when the other joint depositor, Mrs. Quesenberry, called at the bank and asked for the card she said that Mr. Coalson was ill and not able to come to the bank and do his banking, and that he wanted the card so he could make it a joint account in order that she (Mrs. Quesenberry) could make with­drawals for him during his illness.

Utt, an .employee of the bank who was a witness to Coal­son's mark on the joint saving account card, testified that Coalson said the reason he was signing the card was because he was not able to come to the bank and take care of his business, and that he wanted it fixed so that Mrs. Quesenberry could look after his business and keep his bills paid up and

look after his needs. 15• •The principle upon which the case was decided if ap~

plied to the case now before the Court, would compel a decision in favor of the appellant. That principle is laid down in the first headnote of the case in 125 S. E. ( 2d) 869 and is as follows:

"In absence of statutory presumption when person de­posits money in bank to credit of himself and another, pay­able to order· of either or to survivor, rights and interests of depositors as between themselves are dependent upon whet­her owner of money intended to make gift to other or whet~~r account was entered in joint form in accordance with con­tract or for other purposes. Code· 1950, §§ 6-55, 55-21.'' (at pp. 869-70)

The latest case on the subject is Stevens v. Sparks, decided March 9, 1964, 205 Va. 128, 135 S. E. (2d) 140. In that case in 1948 and 1950 Stevens opened three joint bank accounts at the Bank of Salem and First Federal Savings and Loan As­sociation of Roanoke in his naane and that of Miss Sparks ''as joint tenants with right of survivorship, and not as tenants in common''. Two were savings accounts and the other was a checking account. On the day of Stevens' death the total amount on deposit in the three accounts was $28,-381.03. Miss Sparks remembered signing only one signature card furnished by the banks. However, her signature on the

joint bank account cards was not disputed. No such 16,.. language was used •on the subject of the depositor's

intention as the depositor used in the case now before the court. But the court said: ·

Nancy Eugenia Wilkinson v. 11 John William Witherspoon

"During the course of the trial Leonard G. Muse testified that he had been a friend of Stevens since 'sometime in the 1920's'; that he had on several occasions discussed with him the disposition of his estate; that on one occasion Stevens told him he had substantial sums of money on savings and he wanted Miss Sparks to have these accounts; that several years before his death Stevens told him 'of his desire that his entire estate should go to Miss Sparks because of her service to himself and his family.' Muse further testified that Stevens informed him on another occasion that his will had been drawn leaving everything to Miss Sparks; 'that he also had savings and checking accounts which he had placed jointly in his and Miss Sparks' name ; that the money placed in the accounts was earned by him and that he had made the ac­counts jointly so as to be certain that she was joint owner with him of the accounts and that he did not want his wife to get one cent of anything he possessed, but on the contrary Miss Sparks was to have it all.'

"Muse also stated that he had known 1\Hss S.parks for a number of years and s'he was a person of 'good reputation in every respect'. He was certain that her relationship with Stevens 'was one of complete propriety.'

"In his letter opinion, the chancellor held, * * * that the presumption that the bank accounts were placed in the names of Stevens and Miss Sparks, as a matter of convenience, was conclusively rebutted by the evidence adduced; that Stevens' intent in making the deposits was 'established beyond ques­tion'; that decedent's estate had no claim or interest- in the accounts, and that. the accounts passed to Miss Sparks accord­ing to contract." (at pages 143, 144 of 135 S. E. (2d) )

17* •Jn passing upon the trial court's ruling that the estate of Stevens had no claim or interest in the three

joint bank accounts, the court said:

· ·"Finally, it is contended that the court erred in ruling that the estate of Stevens had no claim or interest in the three .joint bank accounts. ·

''Mrs. Stevens argues that in order for Miss Sparks to prevail it must be shown that there was a gift inte.r vivos of the funds in question. She maintains that the evidence falls short of establishing such a gift, because there w.as no de­livery of possession of the money at the time of the gift or an acceptance of it by the donee, and because the doner did

12 Supreme 1Court of Appeals of Virginia

not divest himself of all dominion and control over the money. .

''On the other hand, Miss Sparks does not claim that the ownership of the funds passed to her by a gift inter vivos. She claims ownership of the funds by virtue of the contracts entered into by Stevens, himself and the banks, coupled with the intent of Stevens.

'' (7) The principles of law enumerated in King, Ea;'a;. v. Merrytnllln, .Adm'x., 196 Va. 844, 86 S. E. (2d) 141 are ap­plicable to the case at bar. In. that case the joint bank account was in the names of A. V. Dodson and Lottie King, his daugh­ter, '''subject to the check of either of us or the survivor".' We said:

'In the absence of a statutory provision establishing the rights of the depositors between themselves, it is generally held that questions presented as to the ownership of the fund must be determined in the light of common law principles under the circumstances attending the deposit. In that deter-

mination, the intention of the depositor is •a primary 18• and controlling factor. (Citing authorities. 196 Va. at

p. 851, 86 S. E. (2d) at p. 144)

• • • • • .. -;.. .. - ~. -..

'Where the deposit by a person is in the name of himself .. and another, not his wife, the presumption -is that it was, . done for the· purposes of •convenience only, and this presump­tion is ·strengthened by 1 the illness or infirmity of the de­positor.' '(196 va·. at. p. 856, 86 S.. E. (2d) at p. 147) .

• • • • •

".'It seeins to be well settled that a bank account may be so fixed that two persons shall be joint' owners thereof during their lives, and the survivor take on the -death of the other. This m·ay depend upon the terms of the ·deposit, that is the contract made with the bank, or upon the intention of the depositors as disclosed by their declarations, oral or written. (196 Va. at~· 858, '86 S. W. (2d) at p. 184.)

• • • • •

'' ct• '"' • In the absence of such statutory presumptions, we adhere to the rule that when a person deposits his money in bank to the credit of himself and another, payable to the

·Nancy Eugenia Wilkinson v. John William Witherspoon

13

order o'f either, or the survivor of them, the rights and in­terests of the depositors as between themselves are depend­ent upon the question whether the owner of the money in­tended to make a gift to the other, or whether the owner of

·the money intended to make a gift to the other, or whether the account was entered in joint form in accordance with a contract or for other purposes.' 196 Va. at p. 859, 86 S. E.

(2d) at p. 149. 19• •"To the same effect see Wre1m v. Da;niels, 200 Va.

419, 426, 106 S. E. (2d) 126; Quesenberry v. Funk, 203 Va. 619, 621, 622, 125 S. E. (2d) 869.

''Here, the contracts between Stevens, Miss Sparks and the banks clearly state that the survivor shall be entitled to the funds on deposit in the joint accounts. But form alone is not sufficient, becaus.e the presumption is that the joint ac­counts were made for the purposes of convenience only. How­ever, 'the intention of the depositor is the primary and con­trolling factor.' From the evidence, the chancellor determined that the presumption that the joint accounts were established for convenience was conclusively rebutted, and it was 'estab­lished beyond question' that Stevens' intent in making the deposits was that Miss Sparks should at his death become the sole owner of funds on deposit 'accordin~ to contract'.

"(8) We fully agree with the conclusions reached by the chancellor. The evidence decisively shows that the joint ac­counts were not established for Stevens' convenience, and that it was his desire and intention for Miss Sparks to have sole ownership of the funds on deposit at his death as pro­vided for in the contracts. Thus, the funds in question passed to Miss Sparks by virtue of the contracts. The chancellor cor­rectly held that the estate of Stevens had no claim or interest in the three joint bank accounts.'' (at pages 145, 146 of 135 S. E. (2d) ) .

20• •It will thus be observed from the authorities cited and particularly the Stevens case, ''that a bank account

may be so fixed that two persons shall be joint owners thereof during their lives and the survivor take on the death of the· other." And, said the Court, "this may depend- up·on the terms of the deposit, that is, the contract made with the bank, or upon the intention of the depositors, as disclosed by their declaration, oral or· written.''

Here it is clear from "the terms of the deposit, that is, the contract made with :the bank", that it ·was the intention of the parties that the survivor should take on the death of the

14 Supreme 'Court of Appeals of Virginia

party, and the court should have sustained the demurrer of the appellant to the Bill of Complaint below. Failing in that, the court should have, upon the whole case, held that the deposit in question passed to the survivor, the appellant. Could the intention of the parties have been made clearer by the writing or by oral testimony, either or both? The parties said in writing that the monies placed in the account ''shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the

extent of his or their pro rata interest in the account." 21• *If we concede for the sake of argument that Hewitt

could have withdrawn the entire amount of the account and thus revoked his intention, he did not do so. His intention remained the same and when he died the account passed to the appellant in. accordance with his intention clearly ·ex­pressed in the written instrument setting up the account. The effect of the decree of the learned Chancellor below is to make law to the effect that two persons cannot establish by written .contract a bank account so that they shall be joint owners with right of survivorship without oral, oorroborating testimony. Thus the decree nullifies the statute which express­ly provides that survivorship shall not be abolished where it manifestly appears from the tenor of the instrument that it was intended the part of the one dying should then belong to the others.

b. The parol evidence.

There ·is nothing in the parol evidence (if competent) to indicate llln intention contrary to that expressed ·in the written instr'U!ment. ·

Before entering upon a discussion of the parol evidence of­fered to show the intention of the deceased, it is important to remember that Code§ 55-20 abolishef:l .survivorship only as to joint tenants. Nothing is said in this section ·about joint tenants with the right of survivorship expressly provided

for. Moreover, Code § 55-21 expressly provides that 22• § 55-20 ''·shall not apply • • • ,.wnen it manifestly ap- ·

.pears from the tenor of the instrument that it· was in­tended that the part of the one dying should then belong "to the others.'' Here, even ·without § 55-21, ~ 55~20 does ·not apply because that section abolishes survivorship orily as to joint tenants and not as to joint tenants with express right of survivorship. But, ''to make assurance doubly sure",

Nancy Eugenia Wilkinson v. 15 John William Witherspoon

§ 55-21 expressly provides that § 55-20 shall not apply where it appears from the instrument itself that survivorship was intended. In this case it appears from the instrument itself in two places that survivorship was clearly intended, namely, (1) by the use .of the words, "with right of survivorship'' immediately following the words "joint' tenants", and (2) by the language in the body of the instrument to the effect that it ''shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account.''

We challenged the competency of the parol evidence to con­tradict the terms of the written instrument by craving oyer of the instrument and demurring. The Court overruled our demurrer and we duly excepted.

Conceding, without admitting the competency of the parol evidence, we submit that there is nothing in the evidence to contradict the intention of the parties shown by the language

they used in the written instrument. 23* *The account was· opened on March 2, 1962. The de-

ceased died on November 17, 1962. The evidence shows that the deceased was devoted to the appellant. He helped her to get an education. They conversed frequently over the telephone and she visited him and he visited her. He wrote many letters expressing his gratitude to her for what she had done for him. S'he was particularly attentive to him after his wife died in December, 1961. He visited her almost every Sunday night for dinner. She visited him often, cooked food and took it to him and did many other things for his comfort. Mr. Hewitt was healthy and attending to the business of an accountant until he went to the hospital in September, 1962. No one was authorized to attend to any of his business for him and no one else knew anything about it.

At the Franklin Federal Savings and Loan Association, where the account was established, there was available nu­merous cards to serve the varied interests of the bank's cus­tomers. Mr. Hewitt gained familiarity with these cards in the course of his business as an accountant. He selected the particular card in question to serve his purpose. The only evidence relied upon by the appellee to show an intentio~ contrary to that expressed in the card is the language that Mr. Hewitt used when the card was signed. When he asked appellant .to sign the card she said, ''What's this?" and he "kind of giggled or laughed and said, 'Well, who knows, some

16 Supreme ·Court of Appeals of Virginia r

day somebody may want to pay SOlll~ bills''. That is all 24• that was •said. There is not a scintilla of evidence that

he was anticipating ill health and ~puld need someone to attend to his business. Nor is there a .:scintilla of evidence that in his retirement he would need any help and that the account was set up to enable Mrs. Wilki'*son, the appellant, to draw upon it for the benefit of the deceased. There is no evidence that he was even thinking abou(:retiring or thinking about his health or thinking about any~dy serving him in any way, shape or form. ·

VI. CONCLUSION.

It is respectfully submitted that the learned Chancellor erred in disregarding the statute and rewriting the contract of the parties so as to abolish the surrivorship which was clearly intended.

For the foregoing reasons your petitioner, appellant, prays that an appeal from and supersedeas to· the decree complained

· of may be awarded to her. · 1

Since a certificate of the bank evidencjng the entire deposit, one-half of which at least belongs to t~e appellant, has been made payable subject to the order of the court and deposited with the Clerk as security, no further bond is necessary. Moreover, appellant is a co-executrix of the will of the 4e-ceased. · ·

25"" •VII. STATEMENTS REQUIRED BY RULES.

The name of the appellant is Nancy Eugenia Wilkinson, and the name of her attorney is Geo. ~- Allen, whose address is 4020 West Broad Street, Richmond, Virginia. The name of the appellee is John William Witherspoon, and the name of his attorney is E. L. Turlington, Jr., and his address is 721 East Main Street, Richmond, Virginia. · ·

This petition is adopted as and· in lieu of the opening brief. r

Counsel desires to state orally the reasons for granting th.e petition.

A COllY of. this petition was mailed, postage prepaid, to E. L. Turlington, Jr., Esq., 721 East Main Street, Richmond, Virginia, counsel in the trial court; on the 22 day of May, 1964. '

Nancy Eugenia Wilkinson v. John William Witherspoon

17

This petition will be fi.led with the Supreme Court of Appeals of Virginia at Richmond.

NANCY EUGENIA WILKINSON By GEO. E. ALLEN

(ALLEN, ALLEN. ALLEN AND ALLEN)

4020 West Broad Street Richmond, Virginia,

Attorney for the Appellant.