Present: All the Justices 

MALLORY BUCK, EXECUTOR OF THE 

ESTATE OF CALVIN HUGH BUCK 

v. Record No. 972315 OPINION BY JUSTICE CYNTHIA D. KINSER 

 November 6, 1998 

SANDRA B. JORDAN, ET AL. 

FROM THE CIRCUIT COURT FOR THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

The primary issue in this appeal concerns the 

ownership of an investment account registered as belonging 

to joint tenants with rights of survivorship. Because the 

language of the account agreement overcomes the presumption 

that the account was opened for the convenience of the 

decedent, we will affirm the circuit court’s judgment 

awarding the funds in the account to the surviving joint 

tenant. 

I. 

On July 10, 1991, Calvin Hugh Buck (Buck) and his 

daughter Sandra B. Jordan (Jordan) opened a joint 

investment account (the Account) with Sovran Investment 

Corporation, NationsSecurities’ predecessor. Buck and 

Jordan signed a form titled “New Account Information” (the 

Agreement) and entered into the Account as “Joint Tenants 

with Rights of Survivorship and not as tenants in common or 
as tenants by the entirety.”1 The parties do not dispute 

that Buck funded the Account with $100,000 and that the 

funds were used to purchase a United States Treasury Note. 

After Buck suffered a stroke in May 1995, he and his 

family met on November 4, 1995, to discuss his business 

affairs. During this meeting, Buck learned that Jordan had 

withdrawn $30,000 from one of the bank accounts he held 

jointly with her. Buck asked Jordan to put the money back 

into the bank account, but Jordan refused and stated that 

she was going to have her father evaluated to determine his 

competency. 

After this dispute, Buck removed Jordan’s name from 

several joint accounts. With regard to the Account at 

NationsSecurities, Buck specifically asked his son, Ronald 

Buck (Ronald), on two separate occasions to call 

 1

 The Agreement signed by Buck and Jordan further 

provided that “[i]n the event of the death of either or any 

of the undersigned, the entire interest in the Joint 

Account shall be vested in the survivor or survivors on the 

same terms and conditions as theretofore held, without in 

any manner releasing the undersigned or their estates from 

the liability provided for in this Agreement.” 

In August 1993, NationsSecurities sent out a new 

account agreement in order to update its records. Jordan 

concedes that she signed her name and Buck’s name on this 

agreement. In completing the Account papers, Jordan 

checked two boxes, one for “Rights of survivorship” and one 

for “Tenants in common.” Since none of the parties 

contends that this second agreement has any effect on the 

outcome of this case, we will not consider it in our 

decision. 

2
NationsSecurities and inquire as to how the Account was set 

up. Buck wanted to know whether he had made Jordan the 

beneficiary of the Account and, if so, what steps he needed 

to take to remove her as the beneficiary. Accordingly, 

Ronald called NationsSecurities twice and spoke with Sue 

Carmen (Carmen) each time. Ronald testified as follows 

regarding the first conversation: 

Q. And what did she tell you? 

A. She told me that the account was joint tenants in 

common and I asked her, I said, “What does that mean?” 

She said, “That means that both own equal shares in 

the account and if one passes away the Estate of that 

individual will receive that half and the other living 

party will get half”. 

Ronald testified that when he called NationsSecurities 

the second time, he initially spoke with a receptionist who 

advised him that the Account was “joint survivorship,” 

meaning “if one passes away . . . the survivor gets 100 

percent of the account.” Kenneth C. Buck was listening to 

the conversation on another telephone and related this 

information to his father. Buck then directed Ronald to 

advise the person on the telephone that he wanted to take 

his money out of the Account. When Ronald relayed this 

directive to that person, the individual decided to connect 

him with someone who would be more familiar with the 

Account. Ultimately, Ronald again talked with Carmen. At 

3
trial, Ronald recounted his second conversation with 

Carmen: 

 A. I told her what the receptionist said, or 

 whoever the lady was that answered the phone, 

 and she was very disturbed. She said, “This 

 individual has no knowledge on this account 

 whatsoever.” 

 Q. This individual, meaning who? 

 A. The lady that answered the phone that first 

 talked to me. She said, “I am very familiar 

 with the account. I have already told you one 

 time that it was joint tenants in common and 

 that’s the way it is”. I said, “Well, my father 

 wanted to know if he could draw the money out”, 

 and she said, “Yes. He can draw the money out 

 or Sandra can draw it out, but both names will be 

 on the check”. 

 Q. All right. Did she explain again what she meant 

 by that? 

 A. She told me again, assured me, to tell my father 

 that it was 50 percent each or joint ownership 

 and that joint tenants in common, she said, 

 is initialled “J.T.C.” on the account. 

After this call to NationsSecurities, Buck concluded 

that it would be pointless to withdraw the funds since the 

check would have Jordan’s name on it and he could not cash 

it without her signature. Based on the information from 

Carmen that 50 percent of the funds in the Account would go 

to Jordan and 50 percent to the Estate, Buck reasoned that 

4
it would be better to leave the funds in the Account so 

that they would continue to earn interest.2

Stephanie Adler Calliott, Senior Vice-President at 

NationsSecurities, admitted that the information given to 

Ronald that the Account was held as a tenancy in common was 

incorrect. However, she also testified that, if Buck had 

asked NationsSecurities to liquidate the Account in 1995, 

the check would have been made payable to the parties 

exactly as the Account was titled, that is, to C. H. Buck 

and Sandra B. Jordan as joint tenants. She further 

explained that NationsSecurities’ policy of issuing a check 

exactly as an account is titled is the same whether an 

account is set up as belonging to joint tenants with rights 

of survivorship or as owned by the parties as tenants in 

common. 

On December 23, 1995, Buck died. He was survived by 

five children. A dispute then arose in regard to the 

ownership of the funds in the Account. As a result of that 

dispute, Jordan commenced this action by filing a bill of 

complaint against NationsSecurities and the executor of the 

estate of Calvin Hugh Buck (the Estate) seeking a 

 2

 Mallory H. Buck and Kenneth C. Buck confirmed that 

their father decided to leave the funds in the Account 

since it was his understanding that the Estate would 

receive half of the funds when he died. 

5
declaratory judgment that she, not the Estate, was the sole 

owner of the Account.3 In response, NationsSecurities 

sought to interplead the funds in the Account and be 

dismissed from the suit. The Estate filed a cross-bill 

against NationsSecurities and alleged breach of contract 

and constructive fraud. 

At a bench trial on July 22, 1997, the circuit court 

granted NationsSecurities’ motion for summary judgment on 

the Estate’s breach of contract claim. The court also 

granted partial summary judgment to Jordan and ruled that 

the Estate had the burden of going forward with the 

evidence to establish that Buck had not intended for Jordan 

to receive all the funds in the Account upon his death. 

The court specifically found that the language in the 

Agreement signed by Buck and Jordan to open the Account was 

“clear, unambiguous, and unequivocal and sufficient to 

rebut the presumption that the account was opened solely as 

convenience to Mr. Buck.” 

At the conclusion of the Estate’s evidence, the court 

granted Jordan’s motion to strike and ruled that she was 

entitled to the funds in the Account. However, the court 

denied NationsSecurities’ motion to strike the Estate’s 

 3

 As an alternative remedy, Jordan asked for 

reformation of the Account to the extent necessary to 

6
evidence on the constructive fraud claim. After hearing 

NationsSecurities’ evidence, the court determined that the 

Estate’s constructive fraud claim should be dismissed on 

the basis that the misrepresentation by NationsSecurities 

that any check issued to close the Account would be payable 

to Buck and Jordan was a misrepresentation of law and not 

one of fact, and that the Estate had not proven its 

damages. The court entered its final order on August 7, 

1997. The Estate appeals. 

II. 

We first address the assignment of error that pertains 

to the action commenced by Jordan to determine the 

ownership of the funds in the Account. The Estate assigns 

error to the circuit court’s ruling, after granting partial 

summary judgment to Jordan, that the Estate had the burden 

of going forward with the evidence to show that it was not 

Buck’s intent, at the time that the Account was opened, for 

title to the Account to pass to Jordan upon his death. 

With regard to this issue, the Estate argues that 

evidence of Buck’s intent at or near the time of his death 

is more compelling than evidence of his intent when the 

Account was first opened and should be used to determine 

whether he intended for title to the Account to pass to 

_________________ 

entitle her to all the funds in the Account. 

7
Jordan upon his death. The Estate contends that Buck's 

intent with regard to the Account changed after learning 

that Jordan had withdrawn funds from another joint account. 

Buck manifested his new intent by revoking a power of 

attorney previously given to Jordan and removing her name 

from other joint accounts. Thus, the Estate asserts that 

Buck’s intent just prior to the time of his death rather 

than the language of the Agreement should be dispositive. 

We begin our analysis of this issue by noting that the 

investment account at NationsSecurities is not an “account” 

as defined in Code § 6.1-125.1(1).4 See Bennet v. First & 

Merchants Nat’l Bank, 233 Va. 355, 360, 355 S.E.2d 888, 891 

(1987) (holding Treasury Bill was not an “account” within 

meaning of Title 6.1, Chapter 2.1). Thus, Code § 6.1-

125.5(A), which provides, in pertinent part, that any sum 

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

account belongs to the surviving party, does not apply to 

this case. 

However, we are not without statutory guidance in 

resolving this issue. Although Code § 55-20 abolished the 

common law right of survivorship between joint tenants, 

 4

 Code § 6.1-125.1(1) defines “account” as "a contract 

of deposit of funds between a depositor and a financial 

institution, and includes a checking account, savings 

8
Bennet, 233 Va. at 360, 355 S.E.2d at 891, Code § 55-21 

creates an exception “when it manifestly appears from the 

tenor of the instrument that it was intended the part of 

the one dying should then belong to the others.” We have 

previously held that this section applies to bank accounts, 

Colley v. Cox, 209 Va. 811, 814, 167 S.E.2d 317, 319 

(1969); Wilkinson v. Witherspoon, 206 Va. 297, 304, 142 

S.E.2d 478, 483 (1965); Johnson v. McCarty, 202 Va. 49, 56, 

115 S.E.2d 915, 920 (1960), and we hold that it equally 

applies to the Account at issue in this case. Thus, 

pursuant to Code § 55-21, we must examine the “tenor of the 

instrument” that Buck and Jordan signed. 

In selecting the type of account to be opened at 

NationsSecurities, Buck and Jordan checked the box for 

“Joint Tenants with Rights of Survivorship.” This section 

of the Agreement further states that “[i]n the event of the 

death of either or any of the undersigned, the entire 

interest in the Joint Account shall be vested in the 

survivor or survivors . . . .” This language is 

unambiguous and manifestly signifies the intent that the 

entire interest in the Account would vest in the surviving 

tenant upon the death of the other joint tenant. The 

_________________ 

account, certificate of deposit, share account, and other 

like arrangement.” 

9
Agreement thus satisfies Code § 55-21 and reflects Buck’s 

intent that Jordan would acquire ownership of all the funds 

in the Account upon his death. 

In reaching this conclusion, we are not unmindful of 

the presumption “that a deposit by a person in the name of 

himself and another, not his wife, was made for the 

convenience of the depositor, and the presumption is 

strengthened by the illness or disability of the 

depositor.” Thurston v. Maggard, 220 Va. 815, 818, 263 

S.E.2d 64, 66 (1980).5 However, we have addressed language 

in other account agreements or signature cards similar to 

that at issue in this case and concluded that, in light of 

such language, this presumption “pales” or is overcome. 

Wilkinson, 206 Va. at 305, 142 S.E.2d at 483; accord

Thurston, 220 Va. at 818, 263 S.E.2d at 66; Robbins v. 

Grimes, 211 Va. 97, 100, 175 S.E.2d 246, 248 (1970); 

Campbell v. Campbell, 211 Va. 31, 33, 175 S.E.2d 243, 245 

(1970). In contrast, we held in Colley, 209 Va. at 817, 

167 S.E.2d at 321, that no survivorship account was created 

because the depositor gave no instructions to the bank when 

an account was opened and the signature card did not 

 5

 In regard to contracts of deposit between a depositor 

and a financial institution, Code § 6.1-125.5 abolished 

this presumption, effective July 1, 1980. Thurston, 220 

Va. at 818 n. *, 263 S.E.2d at 66 n. *. 

10
contain any contractual language indicative of the intent 

to create a survivorship account. 

The Estate, nevertheless, argues that our decisions in 

Wilkinson and Thurston are not applicable to this case 

because the signature cards in those cases not only 

included language vesting title to the accounts in the 

surviving joint tenants but also contained an agreement 

between the joint tenants that any funds deposited in the 

accounts during their joint lives would be joint property. 

Although the Agreement in this case does not contain this 

additional language, we, nevertheless, conclude that the 

Agreement manifests a clear intention on the part of Buck 

that the Account would belong to Jordan upon his death. 

As we have previously stated, “the rights of the 

parties are to be determined . . . by rules pertaining to 

the interpretation of contracts.” Wilkinson, 206 Va. at 

304, 142 S.E.2d at 483. The Agreement is a contract 

between Buck, Jordan, and NationsSecurities, and the rules 

for interpreting contracts require that we give effect to 

the intention of the parties. Id. “Where the terms of the 

deposit show a clear intention that title shall vest in the 

survivor, the intention is upheld.” Thurston, 220 Va. at 

818, 263 S.E.2d at 66. 

11
Thus, we conclude that the circuit court did not err 

when it required the Estate to go forward with the evidence 

to show a contrary intent at the time the Account was 

opened. After finding that the signature card in Thurston

rebutted the presumption that the account was opened as a 

convenience to the decedent, we specifically stated that 

the burden of going forward with the evidence fell upon 

those opposing the claim of the surviving joint tenant. 

Id. at 819, 263 S.E.2d at 67. We then noted that no 

attempt was made to establish that the decedent was 

mentally incompetent when he executed the signature card or 

that he signed by mistake or as a result of undue 

influence. Id. Likewise in the present case, the Estate 

did not present evidence of fraud, undue influence, or 

mental incompetence at the time Buck signed the Agreement. 

Absent such proof, the ownership of the Account as 

evidenced by the Agreement prevails. Since the Agreement 

is a contract between three entities, it cannot be altered 

solely because one party’s intent changes. Therefore, 

evidence that Buck’s intent changed subsequent to opening 

the Account is not pertinent to determining whether Jordan 

acquired title to the Account upon Buck’s death.

We next address the Estate’s assignment of error with 

regard to the circuit court’s granting NationsSecurities’ 

12
motion for summary judgment on the breach of contract 

claim. The Estate claims that NationsSecurities breached 

its contract with Buck by refusing to close the Account and 

issue a check for the proceeds solely in Buck’s name. We 

do not agree. 

One of the essential elements of a cause of action for 

breach of contract is that a legal obligation exists from 

one party to another. Caudill v. Wise Rambler, 210 Va. 11, 

13, 168 S.E.2d 257, 259 (1969). The Agreement authorizes 

but does not obligate NationsSecurities to make payments of 

the monies in the Account, even if such payments are to 

only one of the joint tenants. Thus, NationsSecurities had 

no legal obligation to issue a check solely in Buck’s name, 

and the trial court, therefore, did not err in granting 

summary judgment for NationsSecurities on this issue. 

In paragraph 16 of the Agreement, Buck and Jordan 

agreed, in consideration of NationsSecurities’ carrying the 

joint account, that each of them could individually take 

actions with respect to the Account without notice to the 

other joint tenant and authorized NationsSecurities to 

follow the instructions of either one of them. Paragraph 

16 allows NationsSecurities to deal fully and completely 

with either joint tenant as though either one of them was 

solely interested in the Account. Thus, as Calliott 

13
explained, NationsSecurities would accept instructions from 

either joint tenant to sell a security and provide 

proceeds, but it would issue a check made out exactly as 

the account is titled, which in this case was C.H. Buck and 

Sandra B. Jordan as joint tenants. Nothing in the 

Agreement requires NationsSecurities to do otherwise. 

Turning now to the constructive fraud claim, we first 

consider the Estate’s assignment of error that the trial 

court erred by ruling that NationsSecurities’ 

“misrepresentations as to the type of account in which 

Calvin Buck’s money was invested were only 

misrepresentations of law, not misrepresentations of fact.” 

The Estate argues that the statements by NationsSecurities 

that the Account was registered as being held by tenants in 

common when actually it was owned by two joint tenants with 

rights of survivorship was a misrepresentation of fact. 

In response, NationsSecurities contends that the 

misrepresentation contained in the Estate’s assignment of 

error was neither relied upon by it before the circuit 

court nor decided by that court. NationsSecurities also 

contends that the Estate did not object to the court’s 

failure to rule on the issue whether the statement that the 

Account was held as tenants in common was a 

misrepresentation of law or fact. Thus, NationsSecurities 

14
asserts that the Estate has procedurally defaulted this 

assignment of error. We agree. 

The Estate never advised the circuit court that the 

misrepresentation upon which it was relying to assert a 

claim for constructive fraud was the statement that the 

Account was registered as tenants in common.6 Instead, the 

Estate argued to the circuit court that the 

misrepresentation of fact was that Jordan was an owner of 

the Account and that the Estate and Jordan would each 

receive 50 percent of the Account upon Buck’s death.7 

Moreover, when the circuit court specifically identified 

the misrepresentation upon which it was ruling, the Estate 

 6

 The Estate also did not plead this misrepresentation. 

In its cross-bill, it alleged that NationsSecurities 

committed constructive fraud based on its false 

representations that Buck could not withdraw the funds in 

the Account unless Jordan’s name appeared on the check. In 

Henderson v. Henderson, 255 Va. 122, 126, 495 S.E.2d 496, 

499 (1998), we stated that “[f]raud, whether actual or 

constructive, is never presumed and must be strictly proved 

as alleged.” Accord Mortarino v. Consultant Eng’g Serv., 

251 Va. 289, 295, 467 S.E.2d 778, 782 (1996). 

7

 The following excerpt is an example of the Estate’s 

argument before the circuit court: 

[T]he representation is as an existing fact and that 

existing fact is whether or not Sandra Jordan was an 

owner of this account . . . . And there was a clear 

representation that was not only made once, but it was 

reiterated, that she was the owner and that the Estate 

would have 50 percent of it . . . . 

15
did not object.8 And the Estate never objected to the 

court’s failure to decide whether the misrepresentation 

regarding how the Account was held was one of law or fact. 

Rule 5:25 provides, in part, that “[e]rror will not be 

sustained to any ruling of the trial court . . . unless the 

objection was stated with reasonable certainty at the time 

of the ruling . . . .” This Court has held that “[t]he 

purpose of requiring timely specific objections is to 

afford a trial court the opportunity to rule intelligently 

on the issues presented, thereby avoiding unnecessary 

appeals and reversals.” Chawla v. BurgerBusters, Inc., 255 

Va. 616, 622, 499 S.E.2d 829, 832 (1998) (citing Wright v. 

Norfolk & Western Ry. Co., 245 Va. 160, 167-68, 427 S.E.2d 

724, 728 (1993)). We have repeatedly refused to consider 

issues or objections raised for the first time on appeal. 

See, e.g., Cardinal Dev. Co. v. Stanley Constr. Co., Inc., 

255 Va. 300, 305, 497 S.E.2d 847, 850 (1998); Fairfax Hosp. 

v. Curtis, 254 Va. 427, 447-48, 492 S.E.2d 642, 648 (1997); 

Angstadt v. Atlantic Mut. Ins. Co., 254 Va. 286, 291, 492 

S.E.2d 118, 121 (1997); Clarendon House, Inc. v. Helfert, 

 8

 In announcing its decision, the circuit court 

specifically identified the misrepresentation upon which it 

was ruling by stating, “The misrepresentation is that 

someone at [NationsSecurities] informed the decedent that 

he could not withdraw the account unless [Jordan’s] name 

appeared on the check.” 

16
213 Va. 28, 29, 189 S.E.2d 331, 331 (1972). Thus, we 

conclude that the Estate waived the assignment of error as 

presented and failed to assign error to the trial court’s 

actual finding that the statement that Buck could not 

withdraw the funds in the Account without Jordan’s name 

appearing on the check was a misrepresentation of law. 

Therefore, we conclude that the circuit court did not err 

in granting judgment for NationsSecurities on the 

constructive fraud claim.9

For these reasons, we will affirm the judgment of the 

circuit court. 

Affirmed. 

 9

 We need not address the remaining assignment of error 

regarding the circuit court’s finding that the Estate did 

not suffer any damages. 

17