William G. Mercer
Elizabeth, West Virginia
Attorney for the Appellants
Richard A. Hayhurst
Parkersburg, West Virginia
Attorney for the Appellee,
Ralph P. Vance
The Opinion of the Court was delivered PER CURIAM.
Chief Justice Brotherton did not participate.
Retired Justice Miller sitting by special assignment.
"If there is no genuine issue as to any material fact
summary judgment should be granted but such judgment must be denied
if there is a genuine issue as to a material fact." Syllabus point
4, Aetna Casualty & Surety Company v. Federal Insurance Company of
New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
This is an appeal by certain of the nieces and nephews of
Ida V. Stanley from an order of the Circuit Court of Wood County
granting Ralph P. Vance, the executor of Ida V. Stanley's will,
summary judgment in an action brought by the appellants to have
certain assets jointly owned by Ida V. Stanley and Ralph P. Vance
declared assets of Mrs. Stanley's estate. On appeal, the
appellants claim that at the time of the circuit court's order
there were genuine issues of material fact in the case, and that,
under the circumstances, summary judgment was improper. After
reviewing the documents filed and the issues presented, this Court
disagrees. The judgment of the Circuit Court of Wood County is,
Ida V. Stanley, whose property is in dispute in the
present proceeding, executed a will shortly after she was declared
mentally competent by the County Commission of Wood County in a
proceeding instituted by her niece, Naomi June Bowser. In the
will, Mrs. Stanley made devises and bequests to her nieces and
nephews and left the residuum of her estate to certain nephews.
She also nominated her nephew, Ralph P. Vance, to serve as executor
of her estate. Mr. Vance lived with Mrs. Stanley during the last
years of her life, and, in addition to nominating him executor of
her estate, Mrs. Stanley executed a power of attorney making him
Prior to her death, Mrs. Stanley transferred certain
securities, which had a substantial value, from her own name to the
names of herself and Ralph P. Vance, as joint tenants with right of
On August 18, 1991, Ida V. Stanley died, and Ralph P.
Vance offered her will for probate and was appointed executor of
her estate. Mr. Vance subsequently filed an inventory and
appraisement of the estate, as required by law. On the inventory
and appraisement, Mrs. Stanley's probate estate was listed as
consisting of property worth $76,903.10. The assets which Mrs.
Stanley had previously transferred to the joint tenancy with right
of survivorship between herself and Ralph P. Vance were inventoried
as non-probate assets and were listed as being the property of
Ralph P. Vance as the surviving joint tenant. The value of the
joint tenancy property was placed at $183,639.43.
After the filing of the appraisement, the appellants,
Martin F. Vance, June R. Vance, Lewis I. Vance, Naomi June Bowser,
and Rebecca Davis, who were legatees under Ida V. Stanley's will,
instituted the present proceeding. In their amended complaint,
they alleged that at the time Ida V. Stanley transferred the assets
to the joint account between herself and Ralph P. Vance, Ralph P.
Vance was Ida V. Stanley's fiduciary and that:
The obtaining of the assets by Ralph P. Vance for no apparent consideration at a time when he owed a fiduciary duty to Ida V. Stanley, a person of advanced years and diminished mental capacity, creates a presumption that the assets were fraudulently obtained.
The plaintiffs prayed that Ralph P. Vance be required to account for all assets which he had obtained, either jointly or solely from Ida V. Stanley, and that the court declare the assets property of the estate of Ida V. Stanley distributable under her last will and testament.
Following the filing of the complaint and an answer to
it, Ralph P. Vance filed a motion for summary judgment. In
conjunction with that motion, he submitted an affidavit in which he
stated that none of the jointly-owned assets were acquired by him
through the use of the power of attorney granted to him by Ida V.
Stanley and that, to the contrary, all such joint tenancies were
created by Ida V. Stanley in her own proper person during her
lifetime. He also stated:
That great love and affection existed between your affiant and the defendant's decedent, and your affidavit lived with and in the home of the defendant's decedent at a time late in her life when the rest of her family had forsaken her and at a time when at least one of the members of her family, the plaintiff Naomi June Bowser, had attempted to have her declared incompetent and to take control of her financial affairs, and your affiant was therefore, and is, a natural object of bounty of the defendant's decedent . . . That at no time did your affiant employ his power of attorney given to him by the defendant's decedent for his own benefit, nor did he ever exercise any degree of duress or influence over her for his own benefit, not did he perpetuate any species of fraud or other misconduct upon her in order to induce her to transfer or leave property to him during her lifetime or as a result of her death . . . .
After taking the documents filed under consideration, the
Circuit Court of Wood County, on April 8, 1993, entered an order
granting the motion for summary judgment and held that there was no
genuine issue as to any material fact in the case. In granting the
motion for summary judgment, the circuit court, in effect, ruled
that Ralph P. Vance was entitled to the assets in question.
In the present proceeding, the appellants claim that
there were material issues of fact in the case and that, under the
circumstances, the trial court erred in granting summary judgment.
In Aetna Casualty & Surety Company v. Federal Insurance
Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this
Court discussed at some length the circumstances under which
summary judgment could properly be granted under the West Virginia
Rules of Civil Procedure. In that case, the Court indicated that
the question to be decided on a motion for summary judgment was
whether there was a genuine issue of material fact in the case. In
syllabus point 4, the Court concluded:
If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact.
See also, Oakley v. Wagner, 189 W.Va. 337, 431 S.E.2d 676 (1993); Everly v. Peters, 183 W.Va. 613, 397 S.E.2d 416 (1989); Wysong v. Stowers, 166 W.Va. 211, 273 S.E.2d 379 (1980); Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978); Beaver v. Hitchcock, 151 W.Va. 620, 153 S.E.2d 886 (1967); Deane v. Kirsch, 148 W.Va. 429, 135 S.E.2d 295 (1964).
In the present proceeding, the appellants essentially
argue that because Mr. Vance had power of attorney to act in Mrs.
Stanley's behalf at the time funds were transferred to the
survivorship account, he bore the burden of proving that the
transfer of assets to the joint tenancy account was intended by
Mrs. Stanley to be a bona fide gift.
It appears that the appellants' claims in this case grow
out of this Court's holding in Kanawha Valley Bank v. Friend, 162
W.Va. 925, 253 S.E.2d 528 (1979). In that case, this Court
recognized that where parties to a joint bank account with a right
of survivorship occupy a fiduciary or confidential relationship,
the person who benefits from the creation of the account, under
certain circumstances, bears the burden of proving that the
transfer of funds to the joint account was, in fact, intended as a
bona fide gift.
The precise holding in the Kanawha Valley Bank case was
expressed in the sole syllabus point, as follows:
A presumption of constructive fraud may arise in connection with joint bank accounts with survivorship, if the parties to the joint account occupy a fiduciary or confidential relationship. This presumption requires the person who benefits from the creation of the account to bear the burden of proving that the funds were, in fact, a bona fide gift.
In the Kanawha Valley Bank case, the Court also recognized that a power of attorney creates an agency relationship, and this establishes a fiduciary relationship between the principal, or the party who granted the power, and the agent, or the party who receives the power.
In cases which followed Kanawha Valley Bank v. Friend,
Id., the Court pointed out that the mere existence of a power of
attorney or of a fiduciary relationship is not the fact which is
determinative of whether the agent or fiduciary has the burden of
proving that the transfer of funds or property to a joint tenancy
with the right of survivorship was intended as a bona fide gift.
Rather, the Court stressed that the real question is whether the
fiduciary used his fiduciary powers to direct funds or other
property into a joint tenancy with right of survivorship account.
For instance, in Smith v. Smith, 168 W.Va. 511, 285 S.E.2d 145
(1981), the Court stated:
At the crux of our holding in Kanawha Valley Bank v. Friend, supra, was the fact that the surviving joint tenant, by virtue of having a power of attorney from the other joint tenant, a Mr. Dunbar, had a fiduciary relationship independent of the joint account. By using the power of attorney he had cashed treasury bills belonging to Mr. Dunbar and had the proceeds deposited in the joint bank account.
168 W.Va. 514, 285 S.E.2d at 147.
Somewhat similarly, in commenting on the Smith case, in
Yaromey v. King, 182 W.Va. 126, 386 S.E.2d 493 (1989), the Court
stated that a critical feature of the Kanawha Valley Bank case was
the fact that the fiduciary, by using the power of attorney, had
cashed the treasury bills belonging to the grantor of the power of
attorney and had then deposited the proceeds in a joint bank
account. In effect, the fiduciary had used fiduciary powers to
direct funds in such a way that he ultimately stood to benefit from
An important thread runs throughout this Court's cases
relating to when a surviving joint tenant, who is also a fiduciary,
must prove that the deceased joint tenant intended to make a bona
fide gift to him of the assets in that account. That thread
indicates that a fiduciary who is also a surviving joint tenant
must prove that a bona fide gift was intended with the joint
tenancy arrangement if the fiduciary in any way used his fiduciary
powers to divert funds into the account. It is not the fact that
a fiduciary relationship exists that requires the proving of the
bona fide gift. Rather, it is the fact that the fiduciary powers
were used by the fiduciary to divert funds to the joint tenancy
with the right of survivorship that is determinative.
In the case presently before the Court, the facts appear
to be clear. Ida V. Stanley did grant Ralph P. Vance her power of
attorney and thus made him her fiduciary. Ida V. Stanley also created an account titled in her name and the name of Ralph P.
Vance as joints tenants with the right of survivorship and
transferred substantial assets into that joint tenancy account.
The facts are also clear that the transfer of assets was
made by Ida P. Stanley herself and that Ralph P. Vance in no way
used his fiduciary power to bring about the transfer of assets to
the joint account. In his affidavit filed in support of his motion
for summary judgment, Ralph P. Vance specifically stated:
That none of the assets held by the decedent and your affiant as joint tenants, as reflected on the appraisement of the estate of Ida V. Stanley, deceased, were such that an interest therein was acquired by your affiant through the use of the power of attorney granted to him by the decedent during her lifetime; to the contrary, all such joint tenancies were created by the decedent in her own proper person during her lifetime; . . . .
To counter this affidavit, the appellants introduced nothing indicating that the transfers were brought about by Ralph P. Vance through the use of any fiduciary power granted to him by Ida V. Stanley.
This Court believes that for the appellants to prevail in
the present proceeding, it would necessary for them to show that
not only that a fiduciary relationship existed between Ida V.
Stanley and Ralph P. Vance, but also that Ralph P. Vance used that
fiduciary relationship to direct Ida V. Stanley's assets to the
account held with her by him as a joint tenant with the right of
survivorship. The evidence adduced rather conclusively shows that nothing can be introduced showing that the fiduciary power was used
to bring about the transfer of assets.
In this Court's view, at the time the circuit court
granted summary judgment there were no questions of material fact
yet remaining in the case and further development of the evidence
was not desirable to clarify the issues. Under such circumstances,
syllabus point 4 of Aetna Casualty & Surety Company v. Federal
Insurance Company of New York, supra, indicates that summary
judgment should have been granted.
Since the Circuit Court of Wood County did not err in
granting summary judgment, this Court concludes that the circuit
court's judgment should be affirmed.