Present: All the Justices 

JUNE S. ZINK, INDIVIDUALLY AND 

AS ADMINISTRATOR OF THE 

ESTATE OF THOMAS J. STAFFORD,ET AL. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 980283 January 8, 1999 

THOMAS L. STAFFORD 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 In this chancery suit, we consider whether four promissory 

notes are estate assets or whether the notes passed to the 

decedent's daughter, individually, by right of survivorship. 

 Thomas J. Stafford, a widower, died intestate in 1984, 

survived by his only children, a son, appellee Thomas L. 

Stafford, and a daughter, appellant June S. Zink. In 1985, the 

daughter qualified as administrator of the decedent's estate. 

 In 1988, the son filed a bill of complaint, later amended, 

against the daughter individually and in her representative 

capacity, and Continental Insurance Company, surety on the 

administrator's bond. The son alleged, inter alia, that four 

promissory notes were estate assets rather than assets that 

passed to the daughter individually by right of survivorship, as 

she claimed. 

 The cause was referred to a commissioner in chancery, who 

reported to the court in 1992. In a 1994 order, after argument 
of counsel, the chancellor remanded the cause to the 

commissioner in chancery, who was directed to report, inter

alia, "Whether the . . . promissory notes referred to in 

paragraph 5 of the Amended Bill of Complaint are assets of the 

Estate of Thomas J. Stafford or whether they passed to his 

daughter, June S. Zink, by right of survivorship or otherwise." 

 The commissioner held two additional hearings and reported 

to the court in 1996 that the four promissory notes were not 

estate assets but "became the property of" the daughter by right 

of survivorship. The son excepted to the commissioner's finding 

on this issue. 

 After further argument of counsel, the chancellor, in a 

written opinion, sustained the son's exception, ruling that the 

four promissory notes "are assets of the estate." This ruling 

was incorporated in a November 1997 judgment order, from which 

we awarded the daughter this appeal. 

 At the time of his death, the decedent resided in 

Chesterfield County, where he had been engaged in farming, and 

in the development of a residential subdivision upon a parcel of 

land that he owned. Prior to his death, he built four houses in 

the subdivision, each on an individual subdivided lot. He sold 

each of the lots with improvements and in each instance took 

back a purchase money note secured by a deed of trust from the 

purchaser for part of the purchase price. 

2
 These notes have been referred to throughout this prolonged 

litigation as the "Higgerson note," the "Wood note," the 

"Brockwell note," and the "Ross note," so called because the 

names referred to the makers of the notes and the purchasers of 

the real estate. The Higgerson note originally was payable to 

the decedent's order and subsequently endorsed by him on the 

note, "Pay to the order of Thomas J. Stafford or June S. Zink, 

or the survivor." The payee on the other three notes in each 

instance was "Thomas J. Stafford and June S. Zink, or the 

survivor." 

 Proceeds from the notes were deposited into a "collection 

account" at a local bank. The account was maintained in the 

names of "Thomas J. Stafford and June S. Zink as joint tenants 

with right of survivorship." During the several years before 

his death, the decedent's health failed, he "couldn't write 

checks on his own," and he was legally blind. Funds from the 

account were used for the decedent's maintenance or otherwise 

spent as he directed. 

 On appeal, the daughter says, "The sole question in the 

case is whether the Court below was correct in its ruling that 

the four promissory notes were assets of the decedent's estate, 

or whether they passed by right of survivorship to the surviving 

joint tenant." 

3
 The daughter focuses her argument on the provisions of Code 

§§ 55-20 and -21, and upon this Court's decision in Pitts v. 

United States, 242 Va. 254, 408 S.E.2d 901 (1991). Section 

§ 55-21 creates an exception to § 55-20 (which abolished the 

common law right of survivorship between joint tenants) "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." See Buck v. Jordan, 256 Va. 535, 542, ___ S.E.2d ___, 

___ (1998). In Pitts, interpreting those statutes, we found 

"that they were intended to apply to joint tenancies and to 

tenancies by the entireties created by an 'instrument' of 

conveyance or devise." Pitts, 242 Va. at 260, 408 S.E.2d at 

904. We said that the promissory notes in issue there were "not 

such instruments." Id.

 The daughter argues that the trial court misread Pitts when 

it held that Pitts required a holding that the notes in question 

here were not instruments of conveyance or devise and, thus, did 

not qualify for the § 55-21 exception. She contends that the 

Wood, Brockwell and Ross notes, "in their original form, were 

the instruments that created the joint form of ownership. They 

were therefore instruments of conveyance." Continuing, the 

daughter argues, "The Higgerson note could not, in its original 

form, be regarded as an instrument of conveyance." She says, 

"That note, like the notes in Pitts, was a memorial of a chose 

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in action, meaning the right of Thomas J. Stafford to the fund 

represented by the note. However, Mr. Stafford's endorsement of 

the Higgerson note so as to make it payable 'to the order of 

Thomas J. Stafford or June S. Zink, or the survivor' made the 

note, as indorsed, an instrument of conveyance" under § 55-21. 

 In response, the son observes the daughter's appeal is 

based solely on the argument the trial court erred in ruling 

that a survivorship interest cannot be created by a promissory 

note because it is not an instrument of conveyance or devise as 

required by § 55-21. He argues that the daughter, however, 

fails to consider another ruling by the trial court that renders 

her argument moot. He says she incorrectly assumes a critical 

fact, which is that she held a joint tenancy in the notes with 

the decedent before his death. To the contrary, the son points 

out, the chancellor found that the daughter failed to prove the 

father made a valid gift of the note proceeds to her during his 

lifetime. Thus, the son argues, the broader question whether 

these notes create a survivorship interest is immaterial, 

because the notes did not vest any interest in the daughter 

during the decedent's lifetime. Before a survivorship interest 

in the daughter could have been created, the son contends, the 

father must have created a joint tenancy between himself and the 

daughter during his lifetime by conveying or giving her an 

interest in the notes that vested at the time of the gift. 

5
Without such a conveyance or gift, the son argues, a joint 

tenancy did not exist from which to create survivorship. We 

agree with the son. 

 At common law, survivorship was an incident of joint 

tenancy. Allen v. Parkey, 154 Va. 739, 744, 149 S.E. 615, 617 

(1929). A survivorship interest can only be created between 

joint tenants. See Camp v. Camp, 220 Va. 595, 599, 260 S.E.2d 

243, 246 (1979). 

 In the present case, because the daughter did not purchase 

an interest in any of the notes, the only manner in which she 

could have become a joint tenant with her father was for him to 

have made a gift to her of an interest in the notes before his 

death. To determine whether the decedent made a valid gift 

inter vivos, the trier of fact must look beyond the declarations 

on the instrument in question and consider the surrounding facts 

and circumstances. 

 In Swan v. Swan, 136 Va. 496, 117 S.E. 858 (1923), a donor 

had retitled several shares of stock to include his wife's name. 

This Court said that the manner in which the shares of stock 

were retitled was technically sufficient to transfer title. But 

the Court further explained that "it is quite possible and often 

happens, for reasons of convenience or otherwise, that stock 

held in the name of one person really belongs to another. In 

such a case the certificate, though prima facie evidence of 

6
ownership in the person to whom it has been issued, possesses no 

such magic or sacredness as to prevent an inquiry into the 

facts. Sometimes the transferee is merely a nominal holder or 

'dummy,' and in that event, although the transfer may be 

perfectly regular and complete on its fac[e], the true ownership 

remains in the transferor, and that fact may be shown." Id. at 

519, 117 S.E. at 865. 

 The burden to prove a gift was on the daughter. When a 

donee claims title to personal property by virtue of a gift, the 

burden of proof rests upon the donee to show every fact and 

circumstance necessary to constitute a valid gift by clear and 

convincing evidence. Rust v. Phillips, 208 Va. 573, 578, 159 

S.E.2d 628, 631 (1968). 

 One of the elements necessary to constitute a gift inter

vivos is that title to the property must vest in the donee at 

the time of the gift. Taylor v. Smith, 199 Va. 871, 874, 102 

S.E.2d 160, 162-63 (1958). The gift "must be absolute, 

irrevocable and without any reference to its taking effect at 

some future period." Quesenberry v. Funk, 203 Va. 619, 623, 125 

S.E.2d 869, 873 (1962). If a purported gift is not to take 

effect until the donor's death, then there "is an abortive 

testamentary act and not a gift." Knight v. Mears, 156 Va. 676, 

681, 159 S.E. 119, 120 (1931). 

7
 The evidence in the present case clearly shows that the 

decedent during his lifetime never divested himself of dominion 

and control over any portion of the promissory notes. Although 

the note proceeds were deposited into the joint "collection 

account" from which both the father and daughter could withdraw 

funds, she never deposited any of her own funds into the account 

during his lifetime. She admitted that during his lifetime she 

was on the account solely as a convenience to her father, and 

agreed in testimony that he was not making a gift of those 

proceeds to her during his lifetime. For example, when asked, 

"And you didn't consider one-half of those accounts yours while 

your father was alive?", she responded, "No, sir, I did not." 

Moreover, the daughter admitted she could not spend during his 

lifetime any monies in the account without his prior approval. 

Also, the evidence showed the interest earned on the account was 

reported as income on the father's tax returns and none of it 

was reported on her income tax returns. 

 Thus, the survivorship language on each note was an 

abortive testamentary act and not a gift. See Quesenberry, 

supra, 203 Va. at 623-24, 125 S.E.2d at 873 (gift in praesenti

of interest in joint bank account naming father and daughter not 

shown when daughter considered the money belonged to father 

during his lifetime); Wrenn v. Daniels, 200 Va. 419, 430, 106 

S.E.2d 126, 133 (1958) (parol evidence showed decedent had not 

8
made valid gift inter vivos of interest in shares of stock and 

bank account titled jointly in name of decedent and his son). 

 In sum, because there was no valid gift to the daughter of 

any portion of the notes, she did not hold title with her father 

as a joint tenant. Thus, without the prerequisite of a joint 

tenancy, survivorship could not be created.*

 Consequently, we hold that the trial court correctly 

determined that the promissory notes and their proceeds were 

estate assets and did not pass to the daughter individually. 

Hence, the judgment below will be 

Affirmed. 

 

*

In applying the law of gifts inter vivos to determine whether 

the daughter had an ownership interest in the notes as a joint 

tenant, we observe the present case is distinguishable from 

cases like Buck, supra, which applied contract principles when 

construing language in signature cards or account agreements to 

determine whether a surviving joint tenant acquired title to all 

the proceeds in a bank account. In Buck, the parties did not 

contest that the surviving joint tenant had an ownership 

interest in the investment account. 

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