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 
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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 

 1In 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). 
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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 
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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 
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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 

of the joint investment.2

 Id. at 361, 355 S.E.2d at 891-92. 

 

 2Without 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). 
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 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.