Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice
LYNN CHERYL DALE CRAVER-FARRELL,
ADMINISTRATRIX C.T.A. OF THE ESTATE
OF DORIS M. DALE, DECEASED
OPINION BY
v. Record No. 950793 SENIOR JUSTICE HENRY H. WHITING
March 1, 1996
GLADYS C. ANDERSON AND RALPH L. ANDERSON
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
L. Cleaves Manning, Judge
In this appeal, we consider whether the presumption of
survivorship provided in Code § 6.1-125.5(A) applies to funds
formerly held in joint bank accounts, but no longer so held at
the time of the death of one of the parties to those accounts.
Since the survivors to the former joint accounts in issue
prevailed in the trial court, we consider the evidence in the
light most favorable to them. That evidence appears in the
following summary of their testimony.
Ralph L. Anderson and Gladys C. Anderson, his wife, were
close friends of Harvey LeRoy Dale, Jr., and Doris M. Dale, his
wife, for a number of years before Mr. Dale's death in August
1990. The Dales had a daughter, Lynn Cheryl Dale Craver-Farrell,
a resident of western Canada, from whom they were estranged.
Six or seven months before his death, Mr. Dale asked Mr.
Anderson to "look out for [Mrs. Dale]" after his death. Shortly
after Mr. Dale's death following a lengthy illness, Mr. Anderson
told Mrs. Dale that her husband had asked him "to assist her as
well as [he] could," and Mrs. Dale "was very well pleased about
this situation."
Although the Andersons never gave Mrs. Dale any investment
or financial advice, they provided substantial assistance to her
for more than a year while Mrs. Dale was living at home following
her husband's death. During this period, Mrs. Dale converted her
four individual bank accounts and a bank certificate of deposit
into multiple party accounts aggregating over $260,000 in her
name and that of Mrs. Anderson, each of them being authorized
signatories (the Dale-Anderson joint accounts). Mrs. Anderson
testified that this was done to assist Mrs. Dale "in whatever she
wanted me to do." Although Mrs. Anderson filled out checks drawn
on these accounts, Mrs. Dale signed each one. Later, Mrs. Dale
added Mr. Anderson's name to one of the Dale-Anderson joint
accounts.
Mrs. Anderson testified that Mrs. Dale had repeatedly
advised her that the money in the Dale-Anderson joint accounts
was to be used for Mrs. Dale's benefit during her life, and that
at Mrs. Dale's death, the funds "were to be used by my husband
and myself, they were to go to us."
Mrs. Dale fell and injured her leg in January 1992.
Thereafter, Mrs. Dale was hospitalized or living in a nursing
home until her death in December 1992. After Mrs. Dale was
injured, Mrs. Anderson began filling out and signing all checks
drawn on the Dale-Anderson joint accounts. The Andersons also
took charge of Mrs. Dale's house and caused Mrs. Dale's mail to
be sent to their house.
From January 14 through May 4, 1992, Mrs. Anderson
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transferred the balances in four of the five Dale-Anderson joint
accounts (the transferred Dale-Anderson joint accounts) to three
joint bank accounts and one joint bank certificate of deposit,
all solely in the Andersons' names (the Anderson joint accounts).
Mrs. Anderson testified that Mrs. Dale had asked her to make
these transfers "because she figured there was still some way
that [Craver-Farrell] could get her money and she wouldn't have
any money."
There was no question in the Andersons' minds that these
funds belonged to Mrs. Dale during her lifetime. 1 Neither the
funds, nor interest accumulating thereon, were used while Mrs.
Dale was alive, either for the benefit of Mrs. Dale or the
Andersons. Instead, the Andersons paid Mrs. Dale's expenses from
the remaining Dale-Anderson joint account.
On January 16, 1992, Mrs. Dale executed a general power of
attorney naming Mrs. Anderson as her attorney in fact. On
February 3, 1992, Mrs. Dale executed a will leaving all her
property to Craver-Farrell and nominating Mrs. Anderson as
executor of her estate. In both instruments, Mrs. Dale
designated Mr. Anderson as Mrs. Anderson's successor.
Using the general power of attorney, the Andersons sold Mrs.
Dale's car for $7,200 on August 31, 1992, and deposited the
1
In the absence of clear and convincing evidence of Mrs. Dale's
intent to give these funds to the Andersons during Mrs. Dale's
lifetime, the funds would have belonged to Mrs. Dale during her
lifetime under the provisions of Code § 6.1-125.3(A).
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proceeds in one of the Anderson joint accounts. Claiming that
Mrs. Dale had given her a number of articles of personal
property, Mrs. Anderson removed items from Mrs. Dale's house both
before and after her death.
Upon the Andersons' refusal to qualify as the executor or
successor executor of Mrs. Dale's estate, Craver-Farrell
qualified as administratrix c.t.a. of the estate. In that
capacity, Craver-Farrell brought this action against the
Andersons to recover the proceeds from the sale of Mrs. Dale's
car, the items of personal property Mrs. Anderson had removed
from Mrs. Dale's house, and the funds traceable to the
transferred Dale-Anderson joint accounts and now held by the
Andersons.
The Andersons filed an answer denying the substance of the
plaintiff's claims and also filed a counterclaim seeking to
recover the amounts of Mrs. Dale's funeral bill and other bills
they had paid from the remaining Dale-Anderson joint account
following Mrs. Dale's death.
After hearing the evidence and argument of the parties in a
bench trial, the trial court advised the parties that it would
dismiss the counterclaim and require the Andersons to pay the
plaintiff the proceeds from the sale of Mrs. Dale's car and to
return certain items of the personal property Mrs. Anderson had
removed from Mrs. Dale's house. After receiving briefs on the
issue of the Dale-Anderson joint accounts, the trial court later
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entered judgment "in favor of [the Andersons] on the Central
Fidelity Bank account . . . , the Dominion Bank money market
account . . . , the Cenit Bank certificate of deposit . . . , the
Commerce Bank savings account . . . , and the Dominion Bank
checking account . . . ." These accounts are the transferred
Dale-Anderson joint accounts and the Dale-Anderson joint account
that remained on the date of Mrs. Dale's death. The plaintiff
appeals that portion of the judgment dealing with the transferred
Dale-Anderson joint accounts.
Code § 6.1-125.5(A) provides in pertinent part that "[s]ums
remaining on deposit at the death of a party to a joint account
belong to the surviving party . . . as against the estate of the
decedent unless there is clear and convincing evidence of a
different intention at the time the account is created."
(Emphasis added.) Since the transferred Dale-Anderson joint
accounts had been closed prior to Mrs. Dale's death, the
plaintiff contends that the trial court erred in applying the
statutory presumption of survivorship.
On the other hand, citing Higgins v. Bowdoin, 238 Va. 134,
140, 380 S.E.2d 904, 907-08 (1989), in which we applied the
statutory presumption to an account subject to the statutory
provisions, the Andersons claim that the trial court correctly
applied Code 6.1-125.5(A). We agree with the plaintiff.
Higgins is inapplicable to this case because the amount in
the Higgins joint account remained on deposit at the death of one
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party to the account. Instead, the principles of Bennet v. First
& Merchants National Bank, 233 Va. 355, 360, 355 S.E.2d 888, 890-
91 (1987), apply here. In Bennet, the contested funds no longer
remained on deposit in a joint account subject to Code § 6.1-
125.5(A) when one of the parties thereto died. For that reason,
we refused to apply the statutory presumption in Bennet.
The Andersons assert that Bennet can be distinguished on its
facts. First, they note the evidence in Bennet of the decedent's
good relationships with the parties who would have received the
funds if the statute did not apply. The Andersons then contrast
that evidence with Mrs. Anderson's testimony of Mrs. Dale's
estranged relationship with Craver-Farrell and of Mrs. Dale's
intent that Craver-Farrell receive none of the funds traceable to
the Dale-Anderson joint accounts on Mrs. Dale's death.
We do not think that this distinction affects the question
whether Code § 6.1-125.5(A) applies in this case. Our discussion
of those relations in Bennet was material only in considering
whether the survivor had sustained her burden of showing a gift
2
of the joint investment. Id. at 361, 355 S.E.2d at 891-92.
2
Without citation of any authority, the Andersons make a
passing reference in their brief to Mrs. Dale's intention "to make
a gift of the funds to Mr. and Mrs. Anderson." However, our
review of the entire record fails to disclose a contention at
trial by the Andersons that Mrs. Dale made an inter vivos gift of
the funds traceable to the former Dale-Anderson joint accounts.
Accordingly, we will not address this contention, made for the
first time on appeal. Snyder-Falkinham v. Stockburger, 249 Va.
376, 381, 457 S.E.2d 36, 39 (1995); Eason v. Eason, 204 Va. 347,
351-52, 131 S.E.2d 280, 283 (1963).
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Therefore, we conclude that the trial court erred in
applying the presumption provided in Code § 6.1-125.5(A).
Accordingly, we will reverse the judgment awarding the Andersons
the principal amounts of the transferred Dale-Anderson joint
accounts held by the Andersons at the time of Mrs. Dale's death.
We will remand the case with instructions to determine the
interest that has accrued on these amounts since Mrs. Dale's
death and to enter a new order awarding judgment in favor of the
plaintiff for the principal amounts and accrued interest.
Reversed and remanded.
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