Threatte v. Threatte , 59 N.C. App. 292 ( 1982 )

296 S.E.2d 521 (1982)

Ben J. THREATTE, Sr., Individually and Ben J. Threatte, Sr. as Administrator of the Estate of Rance K. Threatte, Deceased
v.
Beverly Ann THREATTE.

No. 8122SC1206.

Court of Appeals of North Carolina.

November 2, 1982.

Raymer, Lewis, Eisele & Patterson by Douglas G. Eisele, Statesville, for plaintiff-appellee.

Pope, McMillan, Gourley & Kutteh by Robert H. Gourley, Statesville, for defendant-appellant.

MORRIS, Chief Judge.

Defendant's only assignment of error challenges the court's entry of summary judgment in favor of the plaintiff and against the defendant. We note at the outset that summary judgment is appropriate in a declaratory judgment action where, there is no genuine issue as to any material fact and either party is entitled to a judgment as a matter of law. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972). The real controversy in this case concerns the legal significance of the facts, rather than the facts themselves.

The first question before this Court is whether the signature card signed by both plaintiff and intestate on 11 October 1979 created a joint account with right of survivorship. G.S. 41-2.1(a) allows an account with right of survivorship to be established when both or all parties "have signed a written agreement, either on the signature card or by separate instrument, expressly providing for the right of survivorship." The type of writing required by this statute to establish an incident of survivorship was considered by the Court in O'Brien v. Reece, 45 N.C.App. 610, 263 S.E.2d 817 (1980). In O'Brien, the Court carefully examined the signature card executed by the decedent (O'Brien) and Reece. Both parties signed the card but the block on the signature card indicating an intention to create the right of survivorship had not been checked. The signature card was determined to be inadequate to establish a joint account with right of survivorship because there was no express provision for right of survivorship. The Court then proceeded to examine the certificate which was issued on the same date the signature card was executed. The certificate was issued in the name of "Albert M. O'Brien or Larry J. Reece as joint owners thereof with right of survivorship." The certificate, however, did not bear the signatures of Albert M. O'Brien or Larry J. Reece. The court concluded that Reece had no interest by survivorship because first, the signature card did not create the right of survivorship, the block for survivorship not having been checked and second, the certificate itself, not having been signed by both parties, was not a signed writing as contemplated by G.S. 41-2.1. The analysis by the Court in O'Brien indicates that either a properly executed signature card or a certificate signed by both parties and expressly providing for a right of survivorship would be sufficient to create a joint account with right of survivorship.

In this case, the signature card was signed by plaintiff and intestate on 11 October 1979 and expressly provided for the right of survivorship as required by G.S. 41-2.1(a). The form of the signature card is virtually identical to that of G.S. 41-2.1(g) which provides:

A deposit account under subsection (a) of this section may be established by a written agreement in substantially the following form:

"We, the undersigned, hereby agree that all sums deposited at any time, including sums deposited prior to this date, in the........(name of institution) in the joint account of the undersigned, shall be held by us as co-owners with the right of survivorship, regardless of whose funds are deposited in said account and regardless of who deposits the funds in said account. Either or any of us shall have the right to draw upon said account, without limit, and in case of the death of either or any of us the survivor or survivors shall be the sole owner or owners of the entire account. This agreement is governed by the provisions of § 41-2.1 of the General Statutes of North Carolina."

A signature card containing this language is sufficient to create an incident of survivorship. See Moore v. Galloway, 35 N.C. App. 394, 241 S.E.2d 386 (1978). Thus, a joint account with right of survivorship was created by the signature card executed on 11 October 1979.

The second question before the court is whether the signature card controls disposition of the proceeds of Money Market Savings Certificate No. 8301194-1. We believe that it does. The O'Brien Court noted the importance of the signature card because it "constitutes the contract between the depositor of money, and the bank in which it is deposited, and it controls the terms and disposition of the account." O'Brien, 45 N.C.App. at 617, 263 S.E.2d at 821.

On 11 October 1979, Certificate No. 83005104 was issued for $10,000 in joint names, and it represented that the joint account created by the signature card contained $10,000. Certificate No. 83005104 was placed in the upper right-hand corner of the signature card.

On 11 April 1980, intestate obtained renewal Certificate No. 8301194-1, issued solely in his name, with $10,000 principal proceeds from the original certificate plus $8,300 of his own funds. This second certificate represented that the joint account originally created by the signature card executed on 11 October 1979 contained $18,300. The fact that renewal Certificate No. 8301194-1 was placed in the upper right-hand corner of the signature card supports the conclusion that disposition of the proceeds of Certificate No. 8301194-1 should be controlled by the signature card.

In addition, the depositions of the employees of the Savings and Loan giving the facts set out herein with respect to the signature card and deposits, and the affidavit of one Thomas Johnson was filed in support of the motion for summary judgment. Affiant stated that he was a close friend of decedent and that on several occasions decedent had made the statement to him that Ben J. Threatte, Sr., father of decedent, "would get everything I've got" after the death of Rance Threatte and further

Rance K. Threatte told your affiant that his father, Ben J. Threatte, Sr., was not aware of it, but that all property theretofore owned by Rance K. Threatte individually, had been put either in his father's name or in the joint names of Rance K. Threatte and Ben J. Threatte, Sr.

Before his death, Rance K. Threatte told your affiant that he had some certificates which he had put in his name and in his father's name; he did not tell your affiant any details about the certificates, including either the amounts of them or the institutions in which they were held.

There was nothing offered by defendant in opposition to the materials offered to support the motion for summary judgment. It is obvious that it was decedent's intention that the terms and disposition of the proceeds of Certificate No. 8301194-1 be controlled by the signature card executed by decedent and his father and upon which the number of the disputed certificate was placed.

The judgment appealed from is

Affirmed.

MARTIN and BECTON, JJ., concur.