Bowling v. Bowling , 243 N.C. 515 ( 1956 )

91 S.E.2d 176 (1956) 243 N.C. 515

Kathrine Ann BOWLING and Billie Jean Bowling, Minors, by their Next Friend, Roger S. Upchurch,
v.
Agnes P. BOWLING, Individually, Agnes P. Bowling, Administratrix of the Estate of Dr. Wm. W. Bowling, and Agnes P. Bowling, Guardian of Kathrine Ann Bowling and Billie Jean Bowling.

No. 670.

Supreme Court of North Carolina.

February 3, 1956.

Roger S. Upchurch, Durham, for plaintiffs appellants.

Albert W. Kennon, Durham, for defendant appellee.

WINBORNE, Justice.

In connection with the assignments of error based upon the exceptions taken and presented on this appeal, it must be borne in mind that an estate by the entirety in personal property is not recognized in North Carolina. Turlington v. Lucas, 186 N.C. 283, 119 S.E. 366; Davis v. Bass, 188 N.C. 200, 124 S.E. 566; Smith v. Smith, 190 N.C. 764, 130 S.E. 614; Winchester-Simmons v. Cutler, 194 N.C. 698, 140 S.E. 622; Dozier v. Leary, 196 N.C. 12, 144 S.E. 368; Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468, 470.

And, under the laws of this jurisdiction, nothing else appearing, money in bank to the joint credit of husband and wife belongs one-half to the husband and onehalf to the wife, as this Court held in Smith v. Smith, supra.

Moreover, as stated by Denny, J., writing for the Court in Wilson v. Ervin, supra, "When property held by tenants by the entirety is sold, the proceeds derived from the sale will not be held as tenants by the entirety with the right of survivorship. Ordinarily, nothing else appearing, the proceeds from the sale of properties held by the entireties are held as tenants in common, but the parties would have the right to determine by contract what disposition should be made of the funds or how they should be held." And the opinion then goes on to say that "since the abolition of survivorship in joint tenancy, G.S. § 41-2, the right of survivorship in personalty, if such right exists, must be pursuant to contract and not by operation of law or statutory provision", citing Taylor v. Smith, 116 N.C. 531, 21 S.E. 202.

In the light of these principles applied to the facts in hand the wife, Agnes P. Bowling, would in any event be entitled to one-half of the four items of subject matter in controversy; and since the parties having contracted and agreed that the savings accounts described hereinabove as the second and third items, respectively, were held by them "as joint tenants with right of survivorship, and not as tenants in common," the right of survivorship existed, and in so holding the trial judge ruled in accordance with decisions of this Court.

Hence the judgment from which plaintiff appeals is

Affirmed.