Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

LYNN CHERYL DALE CRAVER-FARRELL,
ADMINISTRATRIX C.T.A. OF THE ESTATE
OF DORIS M. DALE, DECEASED
                                            OPINION BY
v.   Record No. 950793            SENIOR JUSTICE HENRY H. WHITING
                                           March 1, 1996
GLADYS C. ANDERSON AND RALPH L. ANDERSON

           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                       L. Cleaves Manning, Judge


        In this appeal, we consider whether the presumption of

survivorship provided in Code § 6.1-125.5(A) applies to funds

formerly held in joint bank accounts, but no longer so held at

the time of the death of one of the parties to those accounts.
        Since the survivors to the former joint accounts in issue

prevailed in the trial court, we consider the evidence in the

light most favorable to them.    That evidence appears in the

following summary of their testimony.

        Ralph L. Anderson and Gladys C. Anderson, his wife, were

close friends of Harvey LeRoy Dale, Jr., and Doris M. Dale, his

wife, for a number of years before Mr. Dale's death in August

1990.    The Dales had a daughter, Lynn Cheryl Dale Craver-Farrell,

a resident of western Canada, from whom they were estranged.

        Six or seven months before his death, Mr. Dale asked Mr.

Anderson to "look out for [Mrs. Dale]" after his death.       Shortly

after Mr. Dale's death following a lengthy illness, Mr. Anderson

told Mrs. Dale that her husband had asked him "to assist her as

well as [he] could," and Mrs. Dale "was very well pleased about

this situation."

        Although the Andersons never gave Mrs. Dale any investment
or financial advice, they provided substantial assistance to her

for more than a year while Mrs. Dale was living at home following

her husband's death.   During this period, Mrs. Dale converted her

four individual bank accounts and a bank certificate of deposit

into multiple party accounts aggregating over $260,000 in her

name and that of Mrs. Anderson, each of them being authorized

signatories (the Dale-Anderson joint accounts).   Mrs. Anderson

testified that this was done to assist Mrs. Dale "in whatever she

wanted me to do."   Although Mrs. Anderson filled out checks drawn

on these accounts, Mrs. Dale signed each one.   Later, Mrs. Dale

added Mr. Anderson's name to one of the Dale-Anderson joint

accounts.
     Mrs. Anderson testified that Mrs. Dale had repeatedly

advised her that the money in the Dale-Anderson joint accounts

was to be used for Mrs. Dale's benefit during her life, and that

at Mrs. Dale's death, the funds "were to be used by my husband

and myself, they were to go to us."

     Mrs. Dale fell and injured her leg in January 1992.

Thereafter, Mrs. Dale was hospitalized or living in a nursing

home until her death in December 1992.   After Mrs. Dale was

injured, Mrs. Anderson began filling out and signing all checks

drawn on the Dale-Anderson joint accounts.   The Andersons also

took charge of Mrs. Dale's house and caused Mrs. Dale's mail to

be sent to their house.

     From January 14 through May 4, 1992, Mrs. Anderson




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transferred the balances in four of the five Dale-Anderson joint

accounts (the transferred Dale-Anderson joint accounts) to three

joint bank accounts and one joint bank certificate of deposit,

all solely in the Andersons' names (the Anderson joint accounts).

 Mrs. Anderson testified that Mrs. Dale had asked her to make

these transfers "because she figured there was still some way

that [Craver-Farrell] could get her money and she wouldn't have

any money."
        There was no question in the Andersons' minds that these

funds belonged to Mrs. Dale during her lifetime. 1   Neither the

funds, nor interest accumulating thereon, were used while Mrs.

Dale was alive, either for the benefit of Mrs. Dale or the

Andersons.    Instead, the Andersons paid Mrs. Dale's expenses from

the remaining Dale-Anderson joint account.

        On January 16, 1992, Mrs. Dale executed a general power of

attorney naming Mrs. Anderson as her attorney in fact.      On

February 3, 1992, Mrs. Dale executed a will leaving all her

property to Craver-Farrell and nominating Mrs. Anderson as

executor of her estate.    In both instruments, Mrs. Dale

designated Mr. Anderson as Mrs. Anderson's successor.

        Using the general power of attorney, the Andersons sold Mrs.

Dale's car for $7,200 on August 31, 1992, and deposited the

    1
     In the absence of clear and convincing evidence of Mrs. Dale's
intent to give these funds to the Andersons during Mrs. Dale's
lifetime, the funds would have belonged to Mrs. Dale during her
lifetime under the provisions of Code § 6.1-125.3(A).




                                  -3-
proceeds in one of the Anderson joint accounts.   Claiming that

Mrs. Dale had given her a number of articles of personal

property, Mrs. Anderson removed items from Mrs. Dale's house both

before and after her death.

     Upon the Andersons' refusal to qualify as the executor or

successor executor of Mrs. Dale's estate, Craver-Farrell

qualified as administratrix c.t.a. of the estate.   In that

capacity, Craver-Farrell brought this action against the

Andersons to recover the proceeds from the sale of Mrs. Dale's

car, the items of personal property Mrs. Anderson had removed

from Mrs. Dale's house, and the funds traceable to the

transferred Dale-Anderson joint accounts and now held by the

Andersons.
     The Andersons filed an answer denying the substance of the

plaintiff's claims and also filed a counterclaim seeking to

recover the amounts of Mrs. Dale's funeral bill and other bills

they had paid from the remaining Dale-Anderson joint account

following Mrs. Dale's death.

     After hearing the evidence and argument of the parties in a

bench trial, the trial court advised the parties that it would

dismiss the counterclaim and require the Andersons to pay the

plaintiff the proceeds from the sale of Mrs. Dale's car and to

return certain items of the personal property Mrs. Anderson had

removed from Mrs. Dale's house.    After receiving briefs on the

issue of the Dale-Anderson joint accounts, the trial court later




                                  -4-
entered judgment "in favor of [the Andersons] on the Central

Fidelity Bank account . . . , the Dominion Bank money market

account . . . , the Cenit Bank certificate of deposit . . . , the

Commerce Bank savings account . . . , and the Dominion Bank

checking account . . . ."    These accounts are the transferred

Dale-Anderson joint accounts and the Dale-Anderson joint account

that remained on the date of Mrs. Dale's death.   The plaintiff

appeals that portion of the judgment dealing with the transferred

Dale-Anderson joint accounts.
     Code § 6.1-125.5(A) provides in pertinent part that "[s]ums

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

belong to the surviving party . . . as against the estate of the

decedent unless there is clear and convincing evidence of a

different intention at the time the account is created."

(Emphasis added.)   Since the transferred Dale-Anderson joint

accounts had been closed prior to Mrs. Dale's death, the

plaintiff contends that the trial court erred in applying the

statutory presumption of survivorship.

     On the other hand, citing Higgins v. Bowdoin, 238 Va. 134,
140, 380 S.E.2d 904, 907-08 (1989), in which we applied the

statutory presumption to an account subject to the statutory

provisions, the Andersons claim that the trial court correctly

applied Code 6.1-125.5(A).   We agree with the plaintiff.

     Higgins is inapplicable to this case because the amount in

the Higgins joint account remained on deposit at the death of one



                                 -5-
party to the account.    Instead, the principles of Bennet v. First

& Merchants National Bank, 233 Va. 355, 360, 355 S.E.2d 888, 890-

91 (1987), apply here.   In Bennet, the contested funds no longer

remained on deposit in a joint account subject to Code § 6.1-

125.5(A) when one of the parties thereto died.      For that reason,

we refused to apply the statutory presumption in Bennet.

       The Andersons assert that Bennet can be distinguished on its

facts.   First, they note the evidence in Bennet of the decedent's

good relationships with the parties who would have received the

funds if the statute did not apply.      The Andersons then contrast

that evidence with Mrs. Anderson's testimony of Mrs. Dale's

estranged relationship with Craver-Farrell and of Mrs. Dale's

intent that Craver-Farrell receive none of the funds traceable to

the Dale-Anderson joint accounts on Mrs. Dale's death.
       We do not think that this distinction affects the question

whether Code § 6.1-125.5(A) applies in this case.      Our discussion

of those relations in Bennet was material only in considering

whether the survivor had sustained her burden of showing a gift
                           2
of the joint investment.       Id. at 361, 355 S.E.2d at 891-92.

   2
     Without citation of any authority, the Andersons make a
passing reference in their brief to Mrs. Dale's intention "to make
a gift of the funds to Mr. and Mrs. Anderson." However, our
review of the entire record fails to disclose a contention at
trial by the Andersons that Mrs. Dale made an inter vivos gift of
the funds traceable to the former Dale-Anderson joint accounts.
Accordingly, we will not address this contention, made for the
first time on appeal. Snyder-Falkinham v. Stockburger, 249 Va.
376, 381, 457 S.E.2d 36, 39 (1995); Eason v. Eason, 204 Va. 347,
351-52, 131 S.E.2d 280, 283 (1963).




                                   -6-
     Therefore, we conclude that the trial court erred in

applying the presumption provided in Code § 6.1-125.5(A).

Accordingly, we will reverse the judgment awarding the Andersons

the principal amounts of the transferred Dale-Anderson joint

accounts held by the Andersons at the time of Mrs. Dale's death.

We will remand the case with instructions to determine the

interest that has accrued on these amounts since Mrs. Dale's

death and to enter a new order awarding judgment in favor of the

plaintiff for the principal amounts and accrued interest.

                                           Reversed and remanded.




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