Buck v. Jordan

Present: All the Justices

MALLORY BUCK, EXECUTOR OF THE
ESTATE OF CALVIN HUGH BUCK

v. Record No. 972315 OPINION BY JUSTICE CYNTHIA D. KINSER
November 6, 1998
SANDRA B. JORDAN, ET AL.

FROM THE CIRCUIT COURT FOR THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge

The primary issue in this appeal concerns the

ownership of an investment account registered as belonging

to joint tenants with rights of survivorship. Because the

language of the account agreement overcomes the presumption

that the account was opened for the convenience of the

decedent, we will affirm the circuit court’s judgment

awarding the funds in the account to the surviving joint

tenant.

I.

On July 10, 1991, Calvin Hugh Buck (Buck) and his

daughter Sandra B. Jordan (Jordan) opened a joint

investment account (the Account) with Sovran Investment

Corporation, NationsSecurities’ predecessor. Buck and

Jordan signed a form titled “New Account Information” (the

Agreement) and entered into the Account as “Joint Tenants

with Rights of Survivorship and not as tenants in common or
as tenants by the entirety.” 1 The parties do not dispute

that Buck funded the Account with $100,000 and that the

funds were used to purchase a United States Treasury Note.

After Buck suffered a stroke in May 1995, he and his

family met on November 4, 1995, to discuss his business

affairs. During this meeting, Buck learned that Jordan had

withdrawn $30,000 from one of the bank accounts he held

jointly with her. Buck asked Jordan to put the money back

into the bank account, but Jordan refused and stated that

she was going to have her father evaluated to determine his

competency.

After this dispute, Buck removed Jordan’s name from

several joint accounts. With regard to the Account at

NationsSecurities, Buck specifically asked his son, Ronald

Buck (Ronald), on two separate occasions to call

1
The Agreement signed by Buck and Jordan further
provided that “[i]n the event of the death of either or any
of the undersigned, the entire interest in the Joint
Account shall be vested in the survivor or survivors on the
same terms and conditions as theretofore held, without in
any manner releasing the undersigned or their estates from
the liability provided for in this Agreement.”
In August 1993, NationsSecurities sent out a new
account agreement in order to update its records. Jordan
concedes that she signed her name and Buck’s name on this
agreement. In completing the Account papers, Jordan
checked two boxes, one for “Rights of survivorship” and one
for “Tenants in common.” Since none of the parties
contends that this second agreement has any effect on the
outcome of this case, we will not consider it in our
decision.

2
NationsSecurities and inquire as to how the Account was set

up. Buck wanted to know whether he had made Jordan the

beneficiary of the Account and, if so, what steps he needed

to take to remove her as the beneficiary. Accordingly,

Ronald called NationsSecurities twice and spoke with Sue

Carmen (Carmen) each time. Ronald testified as follows

regarding the first conversation:

Q. And what did she tell you?

A. She told me that the account was joint tenants in
common and I asked her, I said, “What does that mean?”
She said, “That means that both own equal shares in
the account and if one passes away the Estate of that
individual will receive that half and the other living
party will get half”.

Ronald testified that when he called NationsSecurities

the second time, he initially spoke with a receptionist who

advised him that the Account was “joint survivorship,”

meaning “if one passes away . . . the survivor gets 100

percent of the account.” Kenneth C. Buck was listening to

the conversation on another telephone and related this

information to his father. Buck then directed Ronald to

advise the person on the telephone that he wanted to take

his money out of the Account. When Ronald relayed this

directive to that person, the individual decided to connect

him with someone who would be more familiar with the

Account. Ultimately, Ronald again talked with Carmen. At

3
trial, Ronald recounted his second conversation with

Carmen:

A. I told her what the receptionist said, or
whoever the lady was that answered the phone,
and she was very disturbed. She said, “This
individual has no knowledge on this account
whatsoever.”

Q. This individual, meaning who?

A. The lady that answered the phone that first
talked to me. She said, “I am very familiar
with the account. I have already told you one
time that it was joint tenants in common and
that’s the way it is”. I said, “Well, my father
wanted to know if he could draw the money out”,
and she said, “Yes. He can draw the money out
or Sandra can draw it out, but both names will be
on the check”.

Q. All right. Did she explain again what she meant
by that?

A. She told me again, assured me, to tell my father
that it was 50 percent each or joint ownership
and that joint tenants in common, she said,
is initialled “J.T.C.” on the account.

After this call to NationsSecurities, Buck concluded

that it would be pointless to withdraw the funds since the

check would have Jordan’s name on it and he could not cash

it without her signature. Based on the information from

Carmen that 50 percent of the funds in the Account would go

to Jordan and 50 percent to the Estate, Buck reasoned that

4
it would be better to leave the funds in the Account so

that they would continue to earn interest. 2

Stephanie Adler Calliott, Senior Vice-President at

NationsSecurities, admitted that the information given to

Ronald that the Account was held as a tenancy in common was

incorrect. However, she also testified that, if Buck had

asked NationsSecurities to liquidate the Account in 1995,

the check would have been made payable to the parties

exactly as the Account was titled, that is, to C. H. Buck

and Sandra B. Jordan as joint tenants. She further

explained that NationsSecurities’ policy of issuing a check

exactly as an account is titled is the same whether an

account is set up as belonging to joint tenants with rights

of survivorship or as owned by the parties as tenants in

common.

On December 23, 1995, Buck died. He was survived by

five children. A dispute then arose in regard to the

ownership of the funds in the Account. As a result of that

dispute, Jordan commenced this action by filing a bill of

complaint against NationsSecurities and the executor of the

estate of Calvin Hugh Buck (the Estate) seeking a

2
Mallory H. Buck and Kenneth C. Buck confirmed that
their father decided to leave the funds in the Account
since it was his understanding that the Estate would
receive half of the funds when he died.

5
declaratory judgment that she, not the Estate, was the sole

owner of the Account. 3 In response, NationsSecurities

sought to interplead the funds in the Account and be

dismissed from the suit. The Estate filed a cross-bill

against NationsSecurities and alleged breach of contract

and constructive fraud.

At a bench trial on July 22, 1997, the circuit court

granted NationsSecurities’ motion for summary judgment on

the Estate’s breach of contract claim. The court also

granted partial summary judgment to Jordan and ruled that

the Estate had the burden of going forward with the

evidence to establish that Buck had not intended for Jordan

to receive all the funds in the Account upon his death.

The court specifically found that the language in the

Agreement signed by Buck and Jordan to open the Account was

“clear, unambiguous, and unequivocal and sufficient to

rebut the presumption that the account was opened solely as

convenience to Mr. Buck.”

At the conclusion of the Estate’s evidence, the court

granted Jordan’s motion to strike and ruled that she was

entitled to the funds in the Account. However, the court

denied NationsSecurities’ motion to strike the Estate’s

3
As an alternative remedy, Jordan asked for
reformation of the Account to the extent necessary to

6
evidence on the constructive fraud claim. After hearing

NationsSecurities’ evidence, the court determined that the

Estate’s constructive fraud claim should be dismissed on

the basis that the misrepresentation by NationsSecurities

that any check issued to close the Account would be payable

to Buck and Jordan was a misrepresentation of law and not

one of fact, and that the Estate had not proven its

damages. The court entered its final order on August 7,

1997. The Estate appeals.

II.

We first address the assignment of error that pertains

to the action commenced by Jordan to determine the

ownership of the funds in the Account. The Estate assigns

error to the circuit court’s ruling, after granting partial

summary judgment to Jordan, that the Estate had the burden

of going forward with the evidence to show that it was not

Buck’s intent, at the time that the Account was opened, for

title to the Account to pass to Jordan upon his death.

With regard to this issue, the Estate argues that

evidence of Buck’s intent at or near the time of his death

is more compelling than evidence of his intent when the

Account was first opened and should be used to determine

whether he intended for title to the Account to pass to

_________________
entitle her to all the funds in the Account.

7
Jordan upon his death. The Estate contends that Buck's

intent with regard to the Account changed after learning

that Jordan had withdrawn funds from another joint account.

Buck manifested his new intent by revoking a power of

attorney previously given to Jordan and removing her name

from other joint accounts. Thus, the Estate asserts that

Buck’s intent just prior to the time of his death rather

than the language of the Agreement should be dispositive.

We begin our analysis of this issue by noting that the

investment account at NationsSecurities is not an “account”

as defined in Code § 6.1-125.1(1). 4 See Bennet v. First &

Merchants Nat’l Bank, 233 Va. 355, 360, 355 S.E.2d 888, 891

(1987) (holding Treasury Bill was not an “account” within

meaning of Title 6.1, Chapter 2.1). Thus, Code § 6.1-

125.5(A), which provides, in pertinent part, that any sum

remaining on deposit at the death of a party to a joint

account belongs to the surviving party, does not apply to

this case.

However, we are not without statutory guidance in

resolving this issue. Although Code § 55-20 abolished the

common law right of survivorship between joint tenants,

4
Code § 6.1-125.1(1) defines “account” as "a contract
of deposit of funds between a depositor and a financial
institution, and includes a checking account, savings

8
Bennet, 233 Va. at 360, 355 S.E.2d at 891, Code § 55-21

creates an exception “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.” We have

previously held that this section applies to bank accounts,

Colley v. Cox, 209 Va. 811, 814, 167 S.E.2d 317, 319

(1969); Wilkinson v. Witherspoon, 206 Va. 297, 304, 142

S.E.2d 478, 483 (1965); Johnson v. McCarty, 202 Va. 49, 56,

115 S.E.2d 915, 920 (1960), and we hold that it equally

applies to the Account at issue in this case. Thus,

pursuant to Code § 55-21, we must examine the “tenor of the

instrument” that Buck and Jordan signed.

In selecting the type of account to be opened at

NationsSecurities, Buck and Jordan checked the box for

“Joint Tenants with Rights of Survivorship.” This section

of the Agreement further states that “[i]n the event of the

death of either or any of the undersigned, the entire

interest in the Joint Account shall be vested in the

survivor or survivors . . . .” This language is

unambiguous and manifestly signifies the intent that the

entire interest in the Account would vest in the surviving

tenant upon the death of the other joint tenant. The

_________________
account, certificate of deposit, share account, and other
like arrangement.”

9
Agreement thus satisfies Code § 55-21 and reflects Buck’s

intent that Jordan would acquire ownership of all the funds

in the Account upon his death.

In reaching this conclusion, we are not unmindful of

the presumption “that a deposit by a person in the name of

himself and another, not his wife, was made for the

convenience of the depositor, and the presumption is

strengthened by the illness or disability of the

depositor.” Thurston v. Maggard, 220 Va. 815, 818, 263

S.E.2d 64, 66 (1980). 5 However, we have addressed language

in other account agreements or signature cards similar to

that at issue in this case and concluded that, in light of

such language, this presumption “pales” or is overcome.

Wilkinson, 206 Va. at 305, 142 S.E.2d at 483; accord

Thurston, 220 Va. at 818, 263 S.E.2d at 66; Robbins v.

Grimes, 211 Va. 97, 100, 175 S.E.2d 246, 248 (1970);

Campbell v. Campbell, 211 Va. 31, 33, 175 S.E.2d 243, 245

(1970). In contrast, we held in Colley, 209 Va. at 817,

167 S.E.2d at 321, that no survivorship account was created

because the depositor gave no instructions to the bank when

an account was opened and the signature card did not

5
In regard to contracts of deposit between a depositor
and a financial institution, Code § 6.1-125.5 abolished
this presumption, effective July 1, 1980. Thurston, 220
Va. at 818 n. *, 263 S.E.2d at 66 n. *.

10
contain any contractual language indicative of the intent

to create a survivorship account.

The Estate, nevertheless, argues that our decisions in

Wilkinson and Thurston are not applicable to this case

because the signature cards in those cases not only

included language vesting title to the accounts in the

surviving joint tenants but also contained an agreement

between the joint tenants that any funds deposited in the

accounts during their joint lives would be joint property.

Although the Agreement in this case does not contain this

additional language, we, nevertheless, conclude that the

Agreement manifests a clear intention on the part of Buck

that the Account would belong to Jordan upon his death.

As we have previously stated, “the rights of the

parties are to be determined . . . by rules pertaining to

the interpretation of contracts.” Wilkinson, 206 Va. at

304, 142 S.E.2d at 483. The Agreement is a contract

between Buck, Jordan, and NationsSecurities, and the rules

for interpreting contracts require that we give effect to

the intention of the parties. Id. “Where the terms of the

deposit show a clear intention that title shall vest in the

survivor, the intention is upheld.” Thurston, 220 Va. at

818, 263 S.E.2d at 66.

11
 Thus, we conclude that the circuit court did not err

when it required the Estate to go forward with the evidence

to show a contrary intent at the time the Account was

opened. After finding that the signature card in Thurston

rebutted the presumption that the account was opened as a

convenience to the decedent, we specifically stated that

the burden of going forward with the evidence fell upon

those opposing the claim of the surviving joint tenant.

Id. at 819, 263 S.E.2d at 67. We then noted that no

attempt was made to establish that the decedent was

mentally incompetent when he executed the signature card or

that he signed by mistake or as a result of undue

influence. Id. Likewise in the present case, the Estate

did not present evidence of fraud, undue influence, or

mental incompetence at the time Buck signed the Agreement.

Absent such proof, the ownership of the Account as

evidenced by the Agreement prevails. Since the Agreement

is a contract between three entities, it cannot be altered

solely because one party’s intent changes. Therefore,

evidence that Buck’s intent changed subsequent to opening

the Account is not pertinent to determining whether Jordan

acquired title to the Account upon Buck’s death.

We next address the Estate’s assignment of error with

regard to the circuit court’s granting NationsSecurities’

12
motion for summary judgment on the breach of contract

claim. The Estate claims that NationsSecurities breached

its contract with Buck by refusing to close the Account and

issue a check for the proceeds solely in Buck’s name. We

do not agree.

One of the essential elements of a cause of action for

breach of contract is that a legal obligation exists from

one party to another. Caudill v. Wise Rambler, 210 Va. 11,

13, 168 S.E.2d 257, 259 (1969). The Agreement authorizes

but does not obligate NationsSecurities to make payments of

the monies in the Account, even if such payments are to

only one of the joint tenants. Thus, NationsSecurities had

no legal obligation to issue a check solely in Buck’s name,

and the trial court, therefore, did not err in granting

summary judgment for NationsSecurities on this issue.

In paragraph 16 of the Agreement, Buck and Jordan

agreed, in consideration of NationsSecurities’ carrying the

joint account, that each of them could individually take

actions with respect to the Account without notice to the

other joint tenant and authorized NationsSecurities to

follow the instructions of either one of them. Paragraph

16 allows NationsSecurities to deal fully and completely

with either joint tenant as though either one of them was

solely interested in the Account. Thus, as Calliott

13
explained, NationsSecurities would accept instructions from

either joint tenant to sell a security and provide

proceeds, but it would issue a check made out exactly as

the account is titled, which in this case was C.H. Buck and

Sandra B. Jordan as joint tenants. Nothing in the

Agreement requires NationsSecurities to do otherwise.

Turning now to the constructive fraud claim, we first

consider the Estate’s assignment of error that the trial

court erred by ruling that NationsSecurities’

“misrepresentations as to the type of account in which

Calvin Buck’s money was invested were only

misrepresentations of law, not misrepresentations of fact.”

The Estate argues that the statements by NationsSecurities

that the Account was registered as being held by tenants in

common when actually it was owned by two joint tenants with

rights of survivorship was a misrepresentation of fact.

In response, NationsSecurities contends that the

misrepresentation contained in the Estate’s assignment of

error was neither relied upon by it before the circuit

court nor decided by that court. NationsSecurities also

contends that the Estate did not object to the court’s

failure to rule on the issue whether the statement that the

Account was held as tenants in common was a

misrepresentation of law or fact. Thus, NationsSecurities

14
asserts that the Estate has procedurally defaulted this

assignment of error. We agree.

The Estate never advised the circuit court that the

misrepresentation upon which it was relying to assert a

claim for constructive fraud was the statement that the

Account was registered as tenants in common. 6 Instead, the

Estate argued to the circuit court that the

misrepresentation of fact was that Jordan was an owner of

the Account and that the Estate and Jordan would each

receive 50 percent of the Account upon Buck’s death. 7

Moreover, when the circuit court specifically identified

the misrepresentation upon which it was ruling, the Estate

6
The Estate also did not plead this misrepresentation.
In its cross-bill, it alleged that NationsSecurities
committed constructive fraud based on its false
representations that Buck could not withdraw the funds in
the Account unless Jordan’s name appeared on the check. In
Henderson v. Henderson, 255 Va. 122, 126, 495 S.E.2d 496,
499 (1998), we stated that “[f]raud, whether actual or
constructive, is never presumed and must be strictly proved
as alleged.” Accord Mortarino v. Consultant Eng’g Serv.,
251 Va. 289, 295, 467 S.E.2d 778, 782 (1996).
7
The following excerpt is an example of the Estate’s
argument before the circuit court:
[T]he representation is as an existing fact and that
existing fact is whether or not Sandra Jordan was an
owner of this account . . . . And there was a clear
representation that was not only made once, but it was
reiterated, that she was the owner and that the Estate
would have 50 percent of it . . . .

15
did not object. 8 And the Estate never objected to the

court’s failure to decide whether the misrepresentation

regarding how the Account was held was one of law or fact.

Rule 5:25 provides, in part, that “[e]rror will not be

sustained to any ruling of the trial court . . . unless the

objection was stated with reasonable certainty at the time

of the ruling . . . .” This Court has held that “[t]he

purpose of requiring timely specific objections is to

afford a trial court the opportunity to rule intelligently

on the issues presented, thereby avoiding unnecessary

appeals and reversals.” Chawla v. BurgerBusters, Inc., 255

Va. 616, 622, 499 S.E.2d 829, 832 (1998) (citing Wright v.

Norfolk & Western Ry. Co., 245 Va. 160, 167-68, 427 S.E.2d

724, 728 (1993)). We have repeatedly refused to consider

issues or objections raised for the first time on appeal.

See, e.g., Cardinal Dev. Co. v. Stanley Constr. Co., Inc.,

255 Va. 300, 305, 497 S.E.2d 847, 850 (1998); Fairfax Hosp.

v. Curtis, 254 Va. 427, 447-48, 492 S.E.2d 642, 648 (1997);

Angstadt v. Atlantic Mut. Ins. Co., 254 Va. 286, 291, 492

S.E.2d 118, 121 (1997); Clarendon House, Inc. v. Helfert,

8
In announcing its decision, the circuit court
specifically identified the misrepresentation upon which it
was ruling by stating, “The misrepresentation is that
someone at [NationsSecurities] informed the decedent that
he could not withdraw the account unless [Jordan’s] name
appeared on the check.”

16
213 Va. 28, 29, 189 S.E.2d 331, 331 (1972). Thus, we

conclude that the Estate waived the assignment of error as

presented and failed to assign error to the trial court’s

actual finding that the statement that Buck could not

withdraw the funds in the Account without Jordan’s name

appearing on the check was a misrepresentation of law.

Therefore, we conclude that the circuit court did not err

in granting judgment for NationsSecurities on the

constructive fraud claim. 9

For these reasons, we will affirm the judgment of the

circuit court.

Affirmed.

9
We need not address the remaining assignment of error
regarding the circuit court’s finding that the Estate did
not suffer any damages.

17