Summary
In Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798 (1946) we held that money deposited to the credit of depositor's mother subject to check by the depositor only belonged to his estate upon his death in the absence of substantial evidence that depositor clearly intended to create an account with essential elements of joint ownership and supervivorship.
Summary of this case from Thomas v. Estate of EubanksOpinion
No. 35967.
November 26, 1945. Suggestion of Error Overruled January 14, 1946.
1. JOINT TENANCY.
Money deposited to credit of depositor's mother subject to check by depositor belonged upon depositor's death to his estate, in absence of substantial evidence that depositor clearly intended to create an account with essential elements of joint ownership and supervisorship.
2. GIFTS.
A person may make a gift in severalty to another by making a deposit of subject of gift in a bank to credit of donee, provided donor in so doing retains no such control over deposit as will enable him to withdraw it for his own personal use.
3. GIFTS.
Money deposited to the credit of depositor's mother but subject to check by depositor remained the property of depositor and was ineffective as a gift in severalty because of control over deposit retained by depositor.
4. GIFTS.
A person may make a gift in joint tenure by making a deposit of subject of gift in a bank in such a manner that it shall stand to the credit, as joint owners, of the donor and donee.
5. JOINT TENANCY.
A deposit to the credit of depositor or another named person, under statute, raises presumption that deposit was intended to be in joint ownership, and by further force of the statute, subject to withdrawal by either of the joint owners (Code 1942, sec. 5205).
6. JOINT TENANCY.
In creating a joint bank account with right of survivorship, no precise form is essential, if formal deficiencies are supplied by definite proof of intention to create such account (Code 1942, sec. 5205).
7. JOINT TENANCY.
Where facts, well proved, disclose that depositor clearly intended to create a right embracing essential elements of joint ownership and survivorship in respect to bank deposit, the intention so proved will be given effect and survivor held entitled to the fund (Code 1942, sec. 5205).
8. JOINT TENANCY.
Arrangement by which bank account is made subject to the check of two or more persons is not within itself evidence of a joint ownership.
9. JOINT TENANCY.
In order to create a joint account with right of survivorship, it must be either in the form of a deposit to the credit of depositor or another named person or in similarity thereto, or else intention to create a joint ownership account must be well proved aliunde (Code 1942, sec. 5205).
APPEAL from the chancery court of Grenada county, HON. V.D. ROWE, Chancellor.
S.C. Mims and Cowles Horton, both of Grenada, for appellant.
The deposit here was made in the name of appellant. The bank became thereby her debtor. Had there been no condition attached appellant would have been the only person who could have drawn against it or to whom the bank could have made any payment therefrom. There was, however, one, but only one, condition and that condition was express and created by Leverette himself. It was that the account was subject to his check at any time. Beyond this sole reservation of this right Leverette surrendered everything connected with the deposit and died without exercising any part of the right he had. Courts are controlled by the substance of the transaction rather than by the name given it, and when we look to the substance we are bound to conclude not only that Leverette intended to give this money to his mother but that he carried out his intent.
Carradine v. Collins, 7 Smedes M. (15 Miss.) 428, 433; Jones v. Jones, 162 Miss. 501, 139 So. 873; 28 C.J. 634; 55 C.J. 365, 577; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20.
Roberson Luckett, of Clarksdale, for appellee.
A deposit in the name of another is not a gift, if the depositor does not surrender all control over funds.
Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Smith v. Taylor, 183 Miss. 542, 184 So. 423; Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh-Day Adventists, 179 Miss. 642, 176 So. 534; Comfort v. Smith, 198 Miss. 152, 21 So.2d 584; Boyer v. Backus, 282 Mich. 593, 276 N.W. 564; Daly v. Pacific Savings Loan Ass'n, 154 Wn. 249, 282 P. 60; Jones v. Bank of San Jose, 82 Cal.App. 696, 256 P. 247; Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341; Redmond v. Farthing, 217 N.C. 678, 9 S.E.2d 405; Rose v. Osborne, 133 Me. 497, 180 A. 315; Rosey v. Curry's Estate, 265 Mich. 597, 251 N.W. 784; 32 Am. Jur., Gifts, Sec. 101; 38 C.J.S., Gifts, Sec. 49.
Appellant places herself on the theory that the deposit constituted a gift of the moneys to her. The only legitimate question which can come before this Court is whether the trial court erred in deciding the question put to it by appellant; that is, whether the deposit, made under the circumstances under which it was made, constituted a gift to her of the money so deposited. It is too late now for appellant to try to make a different case in this Court from that tried in the court below. He cannot put the trial court in error for trying the case on the theory he invoked himself. In other words, he cannot try one case below, and an entirely different case in the Supreme Court.
Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473; Dixie Greyhound Lines v. Mississippi Public Service Commission et al., 190 Miss. 704, 1 So.2d 489; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Lusk v. Seal, 129 Miss. 228, 91 So. 386; Mississippi Power Co. v. May, 173 Miss. 580, 161 So. 149; Mississippi State Board of Health v. Johnson, 197 Miss. 417, 19 So.2d 445, 827; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Seward v. First Nat. Bank in Meridian, 193 Miss. 656, 8 So.2d 236; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Wilson v. Zook, 69 Miss. 694, 13 So. 351; Griffith's Mississippi Chancery Practice, Secs. 613, 676, 677.
Immediately prior to the transaction here directly involved, F.M. Leverette had been having some difficulties which had incited him to shift his bank accounts, and which culminated in his making a deposit on December 11, 1943, in the Grenada Trust Banking Company of $5,100 to the credit of his mother, the appellant here. The deposit slip which evidenced this deposit showed that the deposit was to the credit of Mrs. Annie C. Leverette, but it bore the notation on its face made by the cashier at the direction of the depositor as follows: "This A/C subject to check by F.M. Leverette at any time," and the signature card, contemporaneously taken to cover the account, carried the statement: "Authorized signatures, F.M. Leverette, subject to check by F.M. Leverette at any time."
F.M. Leverette died on April 4, 1944, and appellee was duly appointed administratrix of his estate. On May 10, 1944, she filed her bill as administratrix to have the deposit declared the property of the estate. Upon final hearing a decree was entered in accordance with the prayer of the bill, and we think the court was correct.
It is well settled that a person may make a gift in severalty to another by making a deposit of the subject of the gift in a bank to the credit of the donee provided the donor in so doing retains no such control over the deposit as will enable him to withdraw it for his own personal uses or purposes. If he retains a control such as mentioned, and as was retained in the present case, the transaction will be ineffective as a gift in severalty and the deposit will remain the property of the depositor. Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Yates' Estate v. Alabama-Mississippi Conference Ass'n, 179 Miss. 642, 176 So. 534; Smith v. Taylor, 183 Miss. 542, 184 So. 423; 32 Am. Jur. Gifts, Sec. 101; 38 C.J.S., Gifts, sec. 49.
It is equally well settled that a person may make a gift in joint tenure by making a deposit of the subject of the gift in a bank in such a manner that it shall stand to the credit, as joint owners, of the donor and the donee, as where, for illustration, John Doe makes a deposit to the credit of "John Doe or Richard Roe," which under the statute, Section 5205, Code 1942, Section 3809, Code 1930, would raise the presumption that the deposit was intended to be in joint ownership, and by the further force of the statute, subject to withdrawal by either of the joint owners. Precise form is not essential if and when formal deficiencies are supplied by definite proof; so that when the facts, well proved, are sufficient to disclose that there was a clear intention to create a right which embraces the essential elements of joint ownership and survivorship in respect to the particular bank deposit, or account, the intention so proved will be given effect and the survivor held entitled to the fund. Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20.
As we understand the argument of appellant, it is that the facts of the case at bar bring it within the rule outlined in the next preceding paragraph, the argument being that inasmuch as the credit in her name made the deposit subject to the check of the mother, and the deposit contract made it subject also to the check of the son, this was enough to create in them a joint ownership. Conceding for the sake of the argument, but for that purpose alone, that the deposit could have been checked upon by the mother, there are so many arrangements, and of such variety, with no other purpose than of convenience, wherein bank accounts are made subject to the check of two or more persons as to preclude an announcement that such an arrangement is within itself the evidence of a joint ownership. The account must be either in a form such as has been illustrated above, or in similarity thereto, or else the intention to create a joint ownership account must be well proved aliunde.
We do not see any substantial evidence aliunde, leaving aside conjecture as must be done, which would uphold a finding that the depositor clearly intended to create an account which embraced the essential elements of joint ownership and survivorship. On the contrary, the reasonable inferences to be drawn from two features sufficiently developed in the record would indicate that he did not so intend, but that he intended exactly what he did, namely, to make an ostensible deposit in the sole name of another retaining dominion over it for his own uses.
Affirmed.