The question is whether deposits by a husband into accounts jointly held with his children can defeat his widow’s right under K.R.S. 392.020 to receive one-half of his surplus personalty upon his death.
Rosa and Amos Rock were married August 10, 1971. Each of them had children by a previous marriage. During the course of their marriage, Amos acquired numerous certificates of deposit, each account bearing only two names; namely Amos Rock and one of his children, or Amos Rock and Rosa Rock. At the time of his death there was approximately $20,000.00 in joint accounts with each one of his seven children, and $20,000.00 in joint accounts with his wife, Rosa.
Following his death, Rosa filed this action to recover her dower interest in one-half of the personalty of Amos Rock pursuant to K.R.S. 392.020, including the money in the various joint accounts.
The respondents contend that K.R.S. 391.315(1) controls the decision. It provides as follows:
“(1) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties 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_”
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The trial court rendered judgment for the widow. The Court of Appeals reversed the judgment, and we granted discretionary review. We now reverse the decision of the Court of Appeals.
The right of dower is one of long standing. A surviving spouse is entitled to an absolute one-half interest in the surplus personalty of a deceased spouse. K.R.S. 392.020. Surplus personalty as used in the statute means the personalty remaining after the payment of the debts, funeral expenses, charges of administration, and widows exemptions have been deducted from the gross personalty possessed by the decedent at the time of his death. Mattingly v. Gentry, Ky.App., 419 S.W.2d 745 (1967); Talbott’s Ex’r v. Goetz, 286 Ky. 504, 151 S.W.2d 369 (1941). The right to dower vests at the time of marriage or at the time of acquisition of subsequently acquired property. Kentucky Bank and Trust Co. v. Ashland Oil and Transportation Co., Ky.App., 310 S.W.2d 287 (1958); Wigginton v. Leech’s Adm’x., 285 Ky. 787, 149 S.W.2d 531 (1941).
In Martin v. Martin, 282 Ky. 411, 138 S.W.2d 509 (1940), we held that a widow was entitled to dower in property that her intended husband disposed of shortly before their marriage in an attempt to defeat the claim by his intended wife to dower.
We have held in many cases that the widow’s right to dower cannot be defeated by a gift by her spouse of all, or more than one-half, of his property to another with the intent to defeat the claims to dower. In Rowe v. Ratliff, 268 Ky. 217, 104 S.W.2d 437 (1937), the purchase of real property by a husband who took title in the name of his mother was held subject to the dower interest of his widow, and in Benge, et al. v. Barnett, 309 Ky. 354, 217 S.W.2d 782 (1949), we reiterated that an attempted gift by a husband of more than one-half of his personalty in an attempt to defeat the dower interest of his widow would be set aside.
*12A husband is precluded not only from making gifts during his lifetime to defeat the dower interests of his wife, but he is also prohibited from disposing of his property by will to defeat dower because, in such a case, the widow can renounce the will and take her interest as provided by K.R.S. 392.020. See K.R.S. 392.080.
In Anderson, Jr. v. Anderson, Ky.App., 583 S.W.2d 504 (1979), a deposit of money into a joint account between the decedent and his children was held to be subject to the assertion of a dower interest by his widow.
It is true, as the respondents contend, that the cases cited hereinabove do not consider the effect, if any, of K.R.S. 391.-315 upon K.R.S. 392.020. No statute has expressly repealed the provisions of K.R.S. 392.020. The respondents contend, however, that K.R.S. 391.315 has done so by implication. We do not find any conflict between K.R.S. 392.020 and K.R.S. 391.315 such that the latter statute can be said by implication to repeal the former.
It is true that K.R.S. 391.315 provides that funds deposited into a joint account belong to the survivor as against the estate of the decedent upon the death of the other party to the account, but this is subject to a statutory limitation that the funds do not become the property of the survivor if there is clear and convincing evidence of a different intention at the time the account was created. We think there is another limitation, necessarily implied in law, that the survivor of parties to a joint account cannot become the owner of the funds in the account upon the death of the other party if the party who deposited the funds was not legally entitled to dispose of them in such a manner.
K.R.S. 391.315 relates to disputes between the estate of a decedent and the survivor of parties of a joint account to the proceeds of the joint account. While K.R.S. 391.315 is a perfectly appropriate statute to settle a dispute between the estate of a decedent and the surviving party to the joint account when there is no clear and convincing evidence of the intent of the parties at the time the account was opened, it is not an appropriate statute to accomplish a transfer of ownership of funds as to which the depositor into the account had no right of disposition. Most certainly, a deposit into a joint account cannot defeat the right to recover the funds so deposited by one who has a legal claim of ownership thereof.
It would go without argument that stolen funds cannot legitimately be transferred to the survivor of a joint account by virtue of the fact that the thief had deposited those funds into a joint account. That would be true because the depositor simply had no legal right to dispose of the money so deposited.
Likewise, it has long been the law of Kentucky by virtue of K.R.S. 392.020 that a husband has no legal right to dispose of more than one-half of his property with intent to defeat a dower claim by his widow. It follows that a husband cannot be permitted to circumvent the law and intentionally defeat a dower claim by means of a deposit into a joint account with someone other than his wife. We interpret K.R.S. 391.315(1) to mean that upon the death of a party to a joint account, the funds on deposit therein do not belong to the survivor if:
(1) there is clear and convincing evidence of a different intention at the time the account was created, or (2) if the depositor was not legally entitled to make such a disposition of the funds.
Absent an agreement of the parties, a disposition of property with the intent to defeat the right of dower creates a presumption of fraud upon the surviving spouse. The deposit of approximately seven-eighths (%) of the personal estate of the decedent in this case into a joint account with his children leaves no doubt of his intent to defeat the movant’s dower interest, and as such, raised a presumption of fraud which was not rebutted.
The respondents rely upon Herren v. Cochran, Ky.App., 697 S.W.2d 149 (1985), and Marcum v. Marcum, Ky., 377 S.W.2d 62 (1964).
*13Herren v. Cochran, supra, is not applicable because the wife had released her claim to dower in an agreement in which she had received an interest in her husband’s realty and one-fourth (l/i) of all monies left in his estate at his death. It was held that money deposited by the husband into a joint account was not left in his estate at the time of his death. It was further held that the joint account was not established with an intent to defeat dower since the wife had released her claim to dower. In the present case, there was no release of dower, and the widow has simply pursued her right to recover her dower interest in funds which were disposed of in a manner to defeat her dower claim. As we said in Martin v. Martin:
"... a man may not make a voluntary transfer of either his real or personal estate with the intent to prevent his wife, or intended wife, from sharing in such property at his death and that the wife, on the husband’s death, may assert her marital rights in such property in the hands of the donee.”
Martin, 138 S.W.2d at 515.
Marcum v. Marcum, supra, is not applicable. It involved the ownership of government bonds bought in the joint names of a man and his sons. No question of intent to defeat dower rights was involved. The only question was whether the bonds should pass as intestate property of the purchaser or be declared the property of the survivor of the named co-owners. The issue was decided as a matter of contract in that the bonds were issued by federal regulations which provided that in the event of the death of one of the joint owners, the survivor should be recognized as the owner.
The respondents contend that by a parity of reasoning, K.R.S. 391.315 should be interpreted that they, as survivors, should be recognized as the owners of the joint accounts. While this may be true, the respondents fail to recognize that the judgment of the trial court merely allowed the movant to recover from them as donees one-half of the value of the certificates of deposit in the joint accounts. The judgment permitted the respondents to control the accounts, but required them to pay the respondent one-half of the sums deposited in the accounts.
An issue was raised in the Court of Appeals as to whether the claim of Rosa Rock was personal to her, and therefore extinguished upon her death. The contention was that the litigation could not be continued by the substitution of the administra-trix of the estate of Rosa Rock as a party to the action. The Court of Appeals did not decide this question in view of its holding adverse to the movant on other grounds, and neither party has briefed the issue in this court.
We reverse the decision of the Court of Appeals, and we remand the case to the Court of Appeals for its determination of the question of whether the substitution of the administratrix of the estate of Rosa Rock was proper.
STEPHENS, C.J., and COMBS, GANT and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents by separate dissenting opinion in which LAMBERT, J., joins.