173 So. 2d 405 | Miss. | 1965
This case is before ns on appeal by Mrs. Lillie Bell Bratos Tucker, defendant in the court below, from a decree of the Chancery Court of George County rendered in favor of Julian C. Tucker, Administrator, and Mrs. S. P. Cagle, Administratrix of the Estate of Earl G. Tucker, deceased, complainants, in the court below, adjudging that the complainants as administrators aforesaid were the true and lawful owners of a deposit account held by Brookley Field Credit Union of Mobile, Alabama, in the name of Earl G. Tucker and Mrs. Earl Tucker in the sum of $2,287.04 as of January 17, 1963, and enjoining the defendant from withdrawing or attempting to withdraw the money on deposit in said account at the time of the filing of the complainants’ bill.
The record shows that Earl G. Tucker was a resident of George County, Mississippi, at the time of his death and for many years immediately prior thereto; that he was first married to Ella Mae Biglane, and to that union there were born two children, Barbara Tucker, born June 22, 1943, and Kerry Tucker born April 29, 1946; that Ella Mae Biglane Tucker died on August 31, 1952, and on November 3, 1956, Earl G. Tucker married Mrs. Lillie Bell Bratos, a widow, the appellant herein. The marriage to Mrs. Bratos was a second marriage for both parties, and on June 2, 1959, the appellant filed a bill for divorce in the Chancery Court of George County. The appellant alleged as grounds for the divorce wilful, continued and obstinate desertion for the space of more than one year. The appellant alleged that
The record shows that Earl G. Tucker died intestate on November 26, 1962, and that he left as his only heirs the two minor children mentioned above; that for many years prior to his death Earl G. Tucker was a civilian employee of the United States at Brookley Field Air Force Base, Mobile, Alabama, and that on February 9, 1954, he opened a deposit account in the nature of a bank savings account with the Brookley Field Credit Union. The account was opened in the name of Earl G. Tucker, and at the time of the filing of the bill of complaint in this cause the account showed deposits and withdrawals as follows: A deposit of $10 during the month of February 1954; a deposit of $590 during the month of June 1955; a deposit of $100 during the month of July 1955; a withdrawal of $675 during the month of August 1955; and a withdrawal of the balance of the money on deposit in the sum of $25.42, in July 1956, when the account was closed. The record shows that the account was reopened on November 29, 1957 by a deposit of $200 and a deposit of $800 was made during the month of December 1957. On January 17, 1958, the name of Mrs. Earl Tucker was added to the account card. No other deposits or withdrawals were made until June 1959. The account showed deposits and withdrawals thereafter, as follows:
*349 June 1959 w/d $200.00
June 1959 w/d 61.00 ($800.00 balance)
June 1959 w/d 50.00
Aug. 1959 w/d 50.00 ($700.00 balance)
Sept. 1960 dep. $258.00 (bal. $,1000.00)
Balance at death 26 Nov. 1962 — $1,110.57 (interest appears to account for difference)
Cuna Ins. Co. paid — 17 Jan. 1963 $1,110.57
CURRENT BALANCE ________$2,287.74
(Interest added on 1 Jan. 63)
The hill of complaint was filed on November 7, 1963. The complainants alleged that they were the duly appointed, qualified and acting administrators of the estate of the decedent by virtue of a decree of the Chancery Court of George County and that the suit was filed under authority of a decree of that court entered on October 21, 1963. The complainants then alleged in the bill the facts concerning the establishment of the above mentioned savings account by the decedent with the Brookley Field Credit Union during the year 1954, and the deposits and withdrawls of funds during the several years which elapsed between that date and the death of Earl G. Tucker, and the facts concerning the addition of the name of “Mrs. Earl Tucker” on the account card on January 17, 1958. The complainants further alleged that at the time of the death of Earl G. Tucker the account, including $110.57 accrued interest, showed a balance of $1110.57; that the account automatically carried life insurance in the amount of the account, and on January 17, 1963, Cuna Insurance Company paid into the account $1110.57 in life insurance payable upon the death of Earl G. Tucker, thereby making a total balance in the account, including $66.60 interest accruing January 1, 1963, in the sum of $2,287.74. The complainants further alleged in their bill that there was no money whatever in the deposit account on No
The complainants further alleged in their bill that the defendant Mrs. Lillie Bell Bratos Tucker never deposited any of her personal funds in the above mentioned Credit Union account during the time of her marriage to Earl G. Tucker, but maintained her personal savings bank account in the Bank of Lucedale; and that upon the separation and divorce of the parties there was an agreement between them effecting a full and complete property settlement, and both parties understood and agreed that the Brookley Field Credit Union account was the property of Earl G. Tucker; that other deposits were made by Earl G. Tucker subsequent to the rendition of the divorce decree, and the proceeds of the above mentioned life insurance policy were deposited to the credit of the account after the death of Earl G. Tucker. The complainants further alleged that although the account card showed that the account was a “joint share” account, the defendant had no equitable interest therein or equitable title thereto whatsoever; that the equitable interest and title in the account was vested solely in the complainants as the legal representatives of the estate of Earl G. Tucker, deceased.
The complainants therefore prayed that process be issued for the defendant commanding her to appear at its next regular term of the court and answer the complainants ’ bill, and that upon the final hearing of the cause a decree be entered adjudging the complainants to be the true and lawful owners of the funds on deposit in the Credit Union account, and that the defendant had no right, title or interest therein, and. perpetually enjoining and restraining the defendant from withdraw
The defendant, Mrs. Lillie Bell Bratos Tucker, in her answer admitted her marriage to Earl Gr. Tucker on November 3, 1956, and she admitted that the marriage had been dissolved by divorce as alleged in the complainants’ bill; but she averréd in her answer that the money on deposit in the Brookley Field Credit Union account represented a joint account before the separation and before the divorce; that she had given Earl Gr. Tucker some money of her own which he had deposited in the account, and Earl Gr. Tucker had agreed that the account would be a joint account. The defendant denied that it was ever the intention of Earl Gr. Tucker to change the account from that of a joint account back to his individual account. The defendant admitted that prior to the divorce there was a property settlement between her and her husband; but she averred that it was agreed among other things that the account with Brookley Field Credit Union would remain intact and would not be liquidated except by mutual agreement between the parties. The defendant admitted that she had asserted a claim to the money on deposit, and had made demand for the payment of the money to her, and that the Credit Union had refused to pay the money to her. She averred in her answer that she was the absolute owner of the money on deposit, and she denied that the complainants had any equitable title or any right thereto.
Several witnesses were called to testify during the hearing.
The complainant Julian C. Tucker testified that he was a brother of Earl Gr. Tucker, deceased, and that the complainant Mrs. S. P. Cagle was a sister of Mrs. Ella Biglane Tucker, deceased, the mother of Earl Gr. Tucker’s two minor children. The witness stated that after he
The complainant Mrs. S. P. Cagle testified that she went with Mr. Julian C. Tucker and his wife to the home of Mrs. Lillie Bell Bratos Tucker, and was present when they showed Mrs. Tucker a letter setting forth the facts concerning the Credit Union account; that Mrs. Tucker read the letter and seemed surprised that the account
Mrs. Lillie Bell Bratos Tucker, being called to testify as a witness on her own behalf, testified that she and Earl Gr. Tucker were married on November 3, 1956; that they lived in the house where she was living when they were married during the first six months of their married life. After that they moved into a house which had been built for them. She took all of her furniture with her when they moved into the new home. She stated that the three years they lived together as husband and wife Barbara and Kerry lived with them. Mr. Tucker was working at Brookley Field at that time. The witness was asked whether she knew about the account in the Credit Union. Objection was made to the testimony and the objection was sustained. The court
Two other witnesses who had known Mrs. Lillie Bell Bratos Tucker for a period of several years testified that they had seen Mrs. Tucker and Mr. Earl G. Tucker together several times after their divorce. One of the witnesses testified that Mrs. Tucker worked at the George County Hospital part of the time while she was married to Mr. Tucker and had worked there since the divorce.
At the conclusion of the evidence the chancellor dictated into the record his findings of fact and his conclusions of law. The chancellor1 found that Mr. Earl Tucker and Mrs. Lillie Bell Bratos Tucker were married in 1956 and were divorced in July 1959, with a property settlement which did not mention in any way the account which Mr. Tucker had with the Brookley Field Credit Union where he had worked. The chancellor found that the account at Brookley Field Credit Union was originally opened prior to the marriage of Mrs. Lillie Bell Bratos Tucker to Mr. Earl G. Tucker; that Mrs. Tucker’s name was added to the account in the year 1958; that from the record of the account introduced in evidence there was no indication as to the actual ownership of the money therein; but after Mr. Tucker’s death in November 1962, the administrators
A decree was therefore entered adjudicating that the administrator and the administratrix of the Estate of Earl Gr. Tucker, deceased, were the true and lawful owners of the deposit account held by the Brookley Credit Union in the amount of $2,287.74, as of January 17, 1963, and all interest accruing therein from and after that date; that the administrators of the estate of the decedent were entitled to possession of the money and were entitled to withdraw the same from the account ; that the defendant Mrs. Lillie Bell Bratos Tucker had no right, title or interest in the deposit account, and was not entitled to withdraw monies out of or from the account; that the defendant should be perpetually enjoined and restrained from withdrawing or attempting to withdraw any money from the account, or instituting legal proceedings in the State of Alabama
The appellant has assigned and argued two main points as grounds for reversal of the decree of the lower court, as follows:
(1) That the appellees failed to meet the burden of proof and requirements of the Alabama Statute necessary to entitle them to ownership, title and possession of the funds on deposit with the Brooldey Field Credit Union at the time of the filing of the bill of complaint in this cause; and
(2) That Sections 128(2) and 128(2a), Title 5, Alabama Code of 1940, are for the protection of the survivor in a contest involving the ownership of a bank deposit made in the names of two persons, as well as for the protection of the bank or institution in which such deposit is made, and are specifically designed to avoid litigation and doubt as to the ownership of such deposit in the absence of a written agreement to the contrary.
It is argued that the chancellor erred in his finding from the evidence and under the law applicable thereto that the appellees, as administrators of the Estate of Earl G. Tucker, deceased, were the owners of the Bookley Field Credit Union deposit account standing in the name of Earl G. Tucker and Mrs. Earl Tucker at the time the suit was filed; and that the chancellor erred on assuming that equity should create a right in the appellees where the positive declaration of the applicable statute vested the appellant with the legal title to the money on deposit with the Credit Union as shown by the record.
But we think there is ample evidence in the record to support the findings of the chancellor that the money on deposit with Brookley Field Credit Union belonged to the estate of Earl G. Tucker, deceased, and
In 10 Am. Jur. 2d. § 377 (1963), it is said:
It is well settled that a bank account of one person may be so arranged that two persons shall be the joint
In cases involving such deposits, questions frequently arise concerning the right of the other than the original owner to the fund upon the death of the original owner. Apart from the contract theory, which is comparatively recent and rare, this leaves the title of the survivor to rest upon a gift, trust, or bequest. The bequest drops out of consideration, because it is not claimed that the transfer is in the requisite form to constitute a valid bequest, that is, there is no compliance with the statute of wills. There thus generally remain two theories, upon one or the other of which the right of the survivor to the fund must be based — gift or trust. Unless the survivor can show title in one of these ways, his claim must ordinarily fail.
To constitute a deposit in the name of the depositor and another a valid gift, there must be an intention to make the gift; if there is no such intention, the survivor is not entitled to the fund on the theory of a gift. 10 Am. Jnr. 2d § 378 (1963); Clark
There is no evidence in the record that we now have before us to show that the appellant was entitled to the Credit Union, deposit fund on the theory of a gift.
But it is argued “that title to and rights in a bank deposit standing in the names of the depositor ‘and’ another or the depositor ‘or’ another is governed by the law of the place where the deposit has been made and the account is kept,” 10 Am. Jur. 2d Banks section 376 (1963); and that, when the laws of the State of Alabama are examined to determine the rights of the parties to the deposit involved in this case, it is .apparent that Sections 128(2) and 128(2a), Title 5, Alabama Code of 1940, vest the absolute title and ownership of the deposit in the appellant.
But we think neither of the two statutes mentioned above vests title to the deposit in the appellant. The record in this case does not show that the deposit was made “in the names of two persons, payable to either or payable to either or survivor,” as provided for in Section 128(2), or that the deposit was made “in the name of two persons payable to either of such persons, or payable to the survivor of them,” as provided in Section 128 (2a). The record only shows that the name of “Mrs. Earl Tucker” was added to the credit card. The record does not show that the account was payable to Earl G. Tucker or Mrs. Earl Tucker” or payable to “Earl G. Tucker or Mrs. Earl Tucker, or the survivor of them.” If Mrs. Tucker had known that the bank deposit existed at the time of the death of Earl G. Tucker and had withdrawn the money from the bank, this, in pur opinion, would not have changed the ownership of the money under the facts disclosed by the record. Cox v. Womack, 145 So. 2d 201 (Ala. 1962).
Finally, it is argued that Section 128(2), supra, shows clearly that the survivor was entitled to the ownership
For the reasons stated above we think there was no error in the chancellor’s finding that the administrators of the estate of Earl G-. Tucker, deceased, were entitled to possession of the money on deposit and were entitled to withdraw the same from the account, and that the appellant had no right, title or interest in the deposit account.
The decree of the lower court is therefore affirmed.
Affirmed.
