O'BRIEN v. Reece ( 1980 )

263 S.E.2d 817 (1980)

Blaine O'BRIEN, Jr., Administrator of the Estate of Albert M. O'Brien, Deceased,
v.
Larry J. REECE and Central Carolina Bank & Trust Company.

No. 799DC388.

Court of Appeals of North Carolina.

March 18, 1980.

Royster, Royster & Cross by T. S. Royster, Jr., Oxford, for plaintiff-appellee.

Watkins, Finch & Hopper by Daniel F. Finch, Oxford, for defendant-appellant Reece.

MORRIS, Chief Judge.

The right of survivorship as a legal incident of joint tenancy, with a few exceptions, has been abolished in North Carolina. G.S. 41-2; Vettori v. Fay, 262 N.C. 481, 137 S.E.2d 810 (1964). Although the common law deemed valid, as an exception to this rule, oral as well as written contracts making the rights of parties dependent on survivorship, Jones v Waldroup, 217 N.C. 178, 7 S.E.2d 366 (1940); Taylor v. Smith, 116 N.C. 531, 21 S.E. 202 (1895), the General Assembly has statutorily required the parties to sign a written agreement expressly providing for the right of survivorship. G.S. 41-2.1(a). Specifically applicable to joint accounts opened with banking institutions, G.S. 41-2.1(a) provides:

A deposit account may be established with a banking institution in the names of two or more persons, payable to either or the survivor or survivors, with incidents as provided by subsection (b) of this section, 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 question before this Court is then whether there is a writing sufficient to create the right of survivorship in the savings account evidenced by the certificate of deposit in the name of Albert M. O'Brien and Larry J. Reece.

Defendant argues in his brief that the writing requirement set forth in G.S. 41-2.1(a) is satisfied in the instant case by the language appearing on the certificate of deposit and the certificate signature card. On the certificate of deposit there is the following language: "Payable to said depositor, or, if more than one, to either or any of said depositors or the survivors or survivor." There appears on the face of the certificate signature card, signed by both plaintiff and defendant, the following statement:

Assent is hereby made to the terms and conditions printed on the reverse of this card and in the case of a savings account, to the terms and conditions printed in the Savings book issued with the account.

On the reverse side of the signature card, the following appears:

DEPOSITOR AGREES AS FOLLOWS AND THE BANK ACCEPTS BUSINESS ON SUCH CONDITIONS ONLY:

. . . . .

12. When indicated on the reverse of this card that the account is a JOINT account, we the parties whose signatures appear on the reverse of this card, agree that all sums deposited at any time, including sums deposited prior to the date of this card, in the Central Carolina Bank & Trust Company in the joint account of the signers of this card, 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 Section 41-2.2 of the General Statutes of North Carolina.

It is clear that the signature card and the certificate of deposit refer to each other in that each document lists the identical account number. (We express no opinion as to the applicability of G.S. 41-2.2 appearing on the reverse side of the signature card, as that section deals with joint ownership of corporate stock and investment securities.)

Defendant Reece takes the position that although the signature card does not indicate on its face whether the account is "joint", the conjunction "or" appearing on the signature card contemplates the right of survivorship and brings into effect paragraph 12 on the reverse side. Alternatively, Reece argues that the language on the certificate of deposit itself constitutes a "separate agreement" as required by G.S. 41-2.1(a), and when read in conjunction with the signature card, shows an intent to create a right of survivorship on the part of O'Brien and Reece.

Although G.S. 41-2.1(a) as it applies to savings accounts opened by two or more persons other than husband and wife, has been in effect since 1963, few decisions have considered the type of writing required by that section. In one case, Moore v. Galloway, 35 N.C.App. 394, 241 S.E.2d 386 (1978), this Court decided whether a bank account held in the name of two persons was a joint account with the right of survivorship. The trial court had considered oral testimony as to the intent of the depositors as well as the signature card issued for the account, and held that the account included the incident of survivorship. We affirmed that ruling, concluding that the signature card required that result. The Court found that the language of the joint account was 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. . . ."

Even without the oral testimony submitted in that case, the language on the signature card was deemed by the court as creating the incident of survivorship.

Similarly, in Harden v. First Union National Bank, 28 N.C.App. 75, 220 S.E.2d 136 (1975), this Court construed language which was alleged to constitute a joint bank account with the right of survivorship. The agreement in question provided as follows:

We agree and declare that all funds now, or hereafter deposited in this account are and shall be our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common; and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn by or upon the order of either of us or the survivor.

It is especially agreed that withdrawal of the funds by the survivor shall be binding upon us and upon heirs, next of kin, legatees, assigns, and personal representatives.

28 N.C.App. at 76, 220 S.E.2d at 137. We held that this language satisfied the requirements of G.S. 41-2.1(a) for the establishment of joint bank accounts with the right of survivorship.

From these decisions, it is clear that the thrust of our inquiry should be directed toward an interpretation of the signature card signed by the depositors. The signature card is important 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." Colley v. Cox, 209 Va. 811, 814, 167 S.E.2d 317, 319 (1969). See also Campbell v. Campbell, 211 Va. 31, 175 S.E.2d 243 (1970); Robbins v. Grimes, 211 Va. 97, 175 S.E.2d 246 (1970). In the present case, the language found in paragraph 12 on the reverse side of the signature card is substantially the same as that approved by the foregoing decisions and G.S. 41-2.1(g). However, as stated in that paragraph, that provision is only applicable when it is "indicated on the reverse" of the card that the account is a "JOINT" account. We find no indication in the space provided on the signature card that gives effect to the survivorship provision. We must conclude, therefore, that the signature card does not expressly provide for the right of survivorship in the certificate of deposit. Contrary to defendant's assertion, in light of the specific directions on the signature card, we cannot overlook the failure to indicate that the savings account was to be joint as inadvertent. The signature card does not comply with G.S. 41-2.1(a).

Defendant's contention that the certificate of deposit itself constitutes compliance with G.S. 41-2.1(a) is equally without merit. In this regard, we note the trial court's finding of fact that "the signature card is the only paper writing signed by the parties relative to the $5,000.00 certificate of deposit." Indeed, the certificate of deposit does not contain the signatures of Albert M. O'Brien or Larry J. Reece. Thus, the certificate is not a signed writing as contemplated by the statute.

Defendant, nevertheless, relies on other provisions in the certificate of deposit to support his contention that the certificate evidences an intent to create the right of survivorship. There appears on the certificate the provision: "Payable to said depositor, or, if more than one, to either or any of said depositors or the survivors or survivor." However, it is apparent that this provision was made a part of the certificate pursuant to G.S. 53-146, which provides that a bank may safely pay either of the two persons, regardless of whether the other is alive, when the deposit is made payable to either, or to either or the survivor. This statute is for the protection of the bank only, and absent any other evidence, is not dispositive as to the ownership of funds. Defendant also contends that the use of the conjunction "or" in the certificate indicates an intent to establish the right of survivorship. Where one deposits money in an account in the name of himself "or" another, the term "or", absent evidence of a separate agreement or a gift, merely creates an agency in the other person to withdraw such funds, and upon the depositor's death the agency terminates and the funds become a part of the depositor's estate. Hall v. Hall, 235 N.C. 711, 71 S.E.2d 471 (1952); Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341 (1933). Thus, in this case, nothing in the certificate of deposit serves to comply with G.S. 41-2.1(a) requiring a signed writing that expressly provides for the right of survivorship.

The trial court's findings of fact are supported by the evidence and materials presented, and those findings are, therefore, conclusive on appeal. Williams v. Pilot Life Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). Since we also find the court's conclusions of law to be supported by its findings of fact, the judgment must be

Affirmed.

PARKER and HILL, JJ., concur.