Clark B. Frame
William L. Frame
Wilson, Frame & Metheny
Morgantown, West Virginia
Counsel for Appellees
George A. Markusic
Morgantown, West Virginia
Counsel for Appellant
This Opinion was delivered PER CURIAM.
1. "In determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the evidence
most favorable to the prevailing party; (2) assume that all
conflicts in the evidence were resolved by the jury in favor of the
prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syl. Pt. 5, Orr v.
Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469
U.S. 981 (1984).
2. "Code, 1931, 31A-4-33 as amended, creates, in the absence of fraud, mistake or other equally serious fault, a conclusive presumption that the donor depositor of a joint and survivorship bank account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant." Syl. Pt. 2, Dorsey v. Short, 157 W. Va. 866, 205 S.E.2d 687 (1974).
This is an appeal by Wilbert Williams from a July 11, 1991,
final order of the Circuit Court of Monongalia County which held,
subsequent to a jury trial, that Mr. Williams was not entitled to
the entirety of the proceeds of a bank account which he and his
father had held jointly, with a right of survivorship, prior to his
father's death. The appellant contends that the trial court erred
in denying his motion for a directed verdict and by improperly
instructing the jury. We find no reversible error and affirm the
decision of the Circuit Court of Monongalia County.
Fred Williams, deceased father of the appellant, was a resident of Osage, Monongalia County, West Virginia. He was the father of two natural children, the appellant Wilbert Williams and the appellee Neola Williams Webb. After Mr. Williams' death on March 14, 1990, a question arose regarding the ownership of bank accounts which had been held jointly, with a right of survivorship, by the decedent and his son, Wilbert Williams.See footnote 1 The decedent's will divided the estate equally among three individuals, including
the appellant, Neola Williams Webb, and Emma Carry Reveley, the
mother of the decedent's two children.See footnote 2 Thus, an issue was raised
regarding whether the jointly held bank accounts belonged
exclusively to the appellant or to the estate of the decedent to be
divided among the three individuals named in his will.
At trial, the appellees, Neola Williams Webb and Emma Carry Reveley, argued that they were entitled to relief based upon the decedent's misunderstanding of the legal effect of the creation of the joint account with right of survivorship. The appellees further contended that the decedent had not intended the appellant to receive the proceeds to the exclusion of the appellees. Evidence was presented regarding the decedent's understanding of the joint accounts and the legal effect thereof. The appellant presented evidence regarding the decedent's 1978 conveyance of his residence in Osage, West Virginia, to his two children with right of survivorship. That deed was prepared by an attorney in Morgantown who is now deceased. The appellant contends that the conveyance with the right of survivorship is evidence of the decedent's familiarity with the concept of right of survivorship, its application, and its ramifications. The appellant also
introduced the testimony of an officer of Citizens Bank of
Morgantown who had assisted the decedent in his banking
transactions. Ms. Margaret Krushansky testified that the decedent
named his son as the joint tenant each time he renewed his
certificates of deposit. In answer to a question regarding whether
she believed that the decedent "knew what he was doing with his
accounts," she testified that it was her judgment that he did.
The appellees, however, introduced testimony by a head teller with Citizens Bank, Ms. Arlene DeLauder, who stated that it had not been the policy of the bank, until very recently, to explain in detail the nature of a joint account with the right of survivorship. Other witnesses for the appellees emphasized the decedent's devotion to both his children and his desire for them to share equally in his estate. The appellees also introduced evidence that the decedent had transferred the funds from savings bonds to the Citizens Bank account. The bonds had been in the name of the decedent or Neola Williams Webb, but the funds were thereafter placed into the joint account with the appellant.See footnote 3 Evelyn Brown, a witness for the appellees, also testified that she had participated in a discussion with the decedent regarding his decision to place one of his children's names on the account. The decedent had informed her that he thought that it was necessary to
place someone else's name on the account to prevent it from "going
to the State." The appellant also testified that his father never
told him that the appellant's name was to be placed on the accounts
so that the appellant would receive the proceeds. In fact, the
appellant testified as follows: "But, I had no intentions of
keeping all of that money. I was going to share it with the whole
family. The situation as now, she caused it all. So that's it."See footnote 4
This issue was tried twice, and both juries found that the decedent was laboring under the mistaken impression that all his assets, even those in the joint account with his son, would be distributed equally among his "wife" Emma Carry Reveley, his son, and his daughter. The first trial was conducted on December 2 and 3, 1990. During that trial, the court's instructions explained that the plaintiff's evidentiary burden was proof by a "preponderance of the evidence." Subsequent to this Court's decision in Lutz v. Orinick, 184 W. Va. 531, 401 S.E.2d 464 (1990), adopting the "clear and convincing evidence" standard where "[a] party seek[s] to prove fraud, mistake or other equally serious fault . . .," the lower court granted a new trial, conducted on June 6 and 7, 1991. Id. at 535, 401 S.E.2d at 468 and Syl. Pt. 2. In conformity with the Lutz opinion, the lower court instructed the
jury that the mistake must be proved by "clear and convincing
evidence." The jury again found in favor of the appellees.
The appellant raises three assignments of error: 1) the lower
court erred by denying the appellant's motion for a directed
verdict; 2) the lower court erred in its instruction to the jury as
to mistake of law, and 3) the lower court erred by failing to grant
appellant's instruction regarding unilateral mistake of law.
The appellant first contends that the evidence presented by
the appellees was insufficient to establish that the decedent had
made a mistake in creating joint bank accounts. The trial court
concluded that the issues should be determined by the jury. In
syllabus point 5 of Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593
(1983), cert. denied, 469 U.S. 981 (1984), we explained the
In determining whether there is
sufficient evidence to support a jury verdict
the court should: (1) consider the evidence
most favorable to the prevailing party; 2)
assume that all conflicts in the evidence were
resolved by the jury in favor of the
prevailing party; (3) assume as proved all
facts which the prevailing party's evidence
tends to prove; and (4) give to the prevailing
party the benefit of all favorable inferences
which reasonably may be drawn from the facts
The appellees in the present case introduced extended
testimony regarding the decedent's desire to leave his estate
equally to his "wife" and his two children. Testimony was also
presented indicating that the bank may not have explained in full
detail the legal effect of a joint account with right of
survivorship. Moreover, testimony was introduced regarding the
decedent's incorrect assumption that his estate would escheat to
the State if he failed to place another name on his account. The
record also reflects that the decedent was of advanced age, of
limited education, and suffered from hearing loss and poor
eyesight. At the very least, this evidence suggests some degree of
confusion of the issues and justifies the lower court's conclusion
that the jury should be permitted to determine the appropriate
resolution. Thus, we believe that the lower court properly denied
the appellant's motion for a directed verdict.
The appellant also contends that the jury was improperly instructed regarding the decedent's possible mistake. Specifically, the appellant claims that the lower court erred by refusing an instruction which would have further explained the issue of unilateral mistake of law. The appellant further contends that the lower court erred by informing the jury that they could find for the appellees if they believed, by clear and convincing evidence, that the decedent was, at the time of the creation of the joint bank account and certificates of deposit, operating under the mistaken belief that the proceeds would be distributed to the
beneficiaries of his estate. The appellant contends that a mistake
of law is no excuse and that the appellant is entitled to the
proceeds absent "fraud, mistake or other equally serious fault."
West Virginia Code § 31A-4-33 (1992) governs the issue of joint bank accounts with the right of survivorship.See footnote 5 We have
examined that statute on numerous occasions and have explained that
the statute "creates, in the absence of fraud, mistake or other
equally serious fault, a conclusive presumption that the donor
depositor of a joint and survivorship bank account intended a causa
mortis gift of the proceeds remaining in the account after his
death to the surviving joint tenant." Syl. Pt. 2, in part, Dorsey
v. Short, 157 W. Va. 866, 205 S.E.2d 687 (1974).
In Dorsey, we addressed the issue of the intention of a
donor/depositor and explained that the element of intent had been
considered by other courts addressing this issue. Id. at 872, 205
S.E.2d at 691. In the context of Dorsey, however, the issue was
being determined while the depositor was still living and while her
intent could obviously be ascertained. While the intent of a
depositor is not so readily ascertainable subsequent to his death,
we refuse to remove the element of intent from the consideration of
the jury in a case such as the present one.See footnote 6
The appellant attempts to interpret the Dorsey line of
opinions by contending that when referring to a "mistake" as being
cause for the rebutting of presumption of a causa mortis gift, we
could not have meant a mere mistake of law. Rather, the appellant
contends, we must have intended such "mistake" to be accompanied by
some fault such as fraud or undue influence. The appellant then
proceeds to evaluate contractual concepts of mutual mistakes of
fact, unilateral mistakes of fact accompanied by inequitable
conduct, and mistakes of law. We believe that such discussion is
unnecessary in light of our explicit statements of the law
regarding the presumption of ownership as enunciated in Dorsey and
its progeny. While the appellant argues that the word "mistake"
must be construed more narrowly, we do not feel constrained to such
The appellant also places great emphasis on a Missouri case, In re Estate of Hysinger, 785 S.W.2d 619 (Mo. App. 1990), in which the ownership of jointly held bank accounts was questioned. The decedent in that case apparently made the same type of "mistake" alleged in this case, and the appellate court held that a "mistake as to the legal effect of the establishment of such a statutory joint tenancy or a mistake regarding the words and markings on a signature card affords no relief by way of rescission of the joint accounts." 785 S.W.2d at 626. The Hysinger court concluded that even though Mr. Hysinger may have misunderstood the legal effect of
joint tenancy, those misunderstandings did not constitute a
"mistake" sufficient to rebut the presumption of a gift. Id.
We do not adopt the reasoning of Hysinger and decline to
remove the intent of the depositor from consideration in cases of
this nature. We further decline to alter the plain meaning of our
previous statements in Dorsey that evidence of "fraud, mistake or
equally serious fault" may rebut the presumption that the depositor
intended a gift. We find that the evidence clearly supports the
jury's conclusion that a "mistake" occurred, and we place no
further limitations on the nature of the "mistake" which must be
proven. Evidence of intent of the depositor, as presented in this
case, may be used to prove the mistake. The jury concluded that
the depositor in this case mistakenly believed that his money would
escheat to the State if he failed to place the name of one of his
children on the account. The evidence also supported the jury's
conclusion that the decedent desired the three individuals to share
equally in his estate upon his death.
Based upon our review of the evidence in this matter, we reiterate our previously holdings in the Dorsey line of opinions and further hold that the mistake identified by the jury in the present case is sufficient to render the funds in question a part of the decedent's estate rather than the exclusive property of the appellant. Further, we find no reversible error in the lower court's determinations regarding the instructions given to the
jury. The lower court properly instructed the jury regarding the
issue of a joint account with the right of survivorship and the
evidence necessary to rebut the presumption that the
donor/depositor intended a causa mortis gift to his son of the
proceeds remaining after his death. Consequently, we hereby affirm
the decision of the Circuit Court of Monongalia County.
Footnote: 1The decedent had been employed as a coal miner and had saved in excess of $175,000, according to the calculations of the appellant. The appellees allege that the decedent's assets may total as much as $204,000. The decedent kept those funds in certificates of deposit and a savings account at Citizens Industrial Financing Corporation, now Citizens Bank of Morgantown, to the date of his death on March 14, 1990, at the age of 87.
Footnote: 2Although Ms. Reveley was referred to in the decedent's will as "my beloved wife," Mr. Williams and Ms. Reveley were never actually married. Ms. Reveley resided with the decedent from 1935 to 1951, during which time the appellant and appellee Ms. Webb were born. Ms. Reveley then moved to Pittsburgh, Pennsylvania, in 1951, taking the children with her. There was very little contact among the parties until the early 1970's. Ms. Reveley is now paralyzed from the effects of a stroke and has resided in a nursing home since 1989.
Footnote: 3The impetus behind the transfer of assets into a "jumbo account" at Citizens Bank was apparently to generate greater interest than a savings account or certificate of deposit of less than $100,000.
Footnote: 4The appellant and his sister even discussed the need to obtain a death certificate to present to the bank. A subsequent dispute arose between the two, and the appellant decided to claim all the proceeds as his own.
Footnote: 5West Virginia Code § 31A-4-33 provides as follows:
If any deposit in any banking institution
be made by any person describing himself in
making such deposit as trustee for another,
and no other or further notice of the
existence and terms of a legal and valid trust
than such description shall be given in
writing to the banking institution, in the
event of the death of the person so described
as trustee, such deposit, or any part thereof,
together with the interest thereon, may be
paid to the person for whom the deposit was
thus stated to have been made.
When a deposit is made by any person in the name of such depositor and another or others and in form to be paid to any one of such depositors, or the survivor or survivors of them, such deposit, and any additions thereto, made by any of such persons, upon the making thereof, shall become the property of such persons as joint tenants; and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any one of them during the lifetime of them, or to the survivor or survivors after the death of any of them; and such payment and the receipt or the acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge for all payments made on account of such deposit, prior to the receipt by the banking institution of notice in writing, signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof. Prior to the receipt of such notice no banking institution shall be liable for the payment of
The second sentence of the second paragraph was added by
amendment effective July 1, 1991, but it does not alter the impact
of the statute in this case.
Footnote: 6Our discussion in Dorsey regarding the role of intent in the attempt to rebut the presumption of a gift centers upon the intent of a depositor who is still alive and able to testify regarding his intent. We see no reason to prohibit the introduction of competent evidence of the depositor's intent even after the death of the depositor.