Napier v. High Point Bank & Trust Co.

WELLS, Judge. When a motion for summary judgment is granted, “the critical questions for determination upon appeal are whether on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law.” Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399 (1980), cert. denied, 276 S.E.2d 283 (1981). Defendant Clodfelter assigns error to the court’s entry of summary judgment in favor of plaintiffs instead of him regarding the ownership of the funds represented by the High Point Bank certificate of deposit. Alternatively, defendant Clodfelter assigns error to the entry of summary judgment on the grounds that genuine issues of material fact exist regarding the settlement agreement. We affirm. In granting summary judgment in favor of plaintiffs, the court found: The funds represented by High Point Bank & Trust Company certificate of deposit number 016997 were not held by Henry [393] Hazel Clodfelter and Mary B. Clodfelter as joint tenants with right of survivorship. As a result, at the death of Mary B. Clodfelter, one-half of those funds became the property of Henry Hazel Clodfelter and the remaining one-half became the property of the Estate of Mary B. Clodfelter. Plaintiffs’ [sic] are entitled to judgment as a matter of law to that effect, and plaintiffs’ [sic] are entitled to summary judgment to that extent. Defendant Clodfelter’s first claim is that the court erred in ruling that the funds represented by the High Point Bank certificate were not held by him and his wife as joint tenants with the right of survivorship. We disagree. Parties who wish to create a right of survivorship in a joint bank account must comply with the requirements of N.C. Gen. Stat. § 41-2.1(a): 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. . . 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. This statute applies to the purchase of certificates of deposit, and has been strictly construed. See In re Estate of Heffner, 99 N.C. App. 327, 392 S.E.2d 770 (1990).1 Defendant does not contend that he signed anything when the certificate of deposit was purchased. He relies on the fact that the money used to purchase the certificate had been withdrawn from a survivorship account with Wachovia Bank and Trust Company, and claims that the signature card from that account, which both he and his wife signed, constitutes a sufficient separate instrument to fall within the statute. Assuming arguendo that sur-vivorship accounts may be established by methods other than the contemporaneous execution of a signature card, there must be some evidence, however, either on the face of the claimed agreement or the documents setting up the account that what is being put [394] forward as the survivorship agreement was intended to govern the particular account in question. In Threatte v. Threatte, 59 N.C. App. 292, 296 S.E.2d 521 (1982), disc. rev. withdrawn as improvidently granted, 308 N.C. 384, 302 S.E.2d 226 (1983), plaintiff and intestate had purchased a money market savings certificate with intestate’s funds. The signature card signed by both provided for survivorship rights. The certificate matured, and was renewed in a larger amount by purchase of a new certificate in intestate’s name alone. This Court held that the funds were still held in a survivorship account at intestate’s death, and belonged to plaintiff. The new certificate number had been placed in the upper right corner of the original signature card. This evidence, coupled with deposition testimony regarding intestate’s intentions, supported the conclusion that the original signature card controlled the proceeds represented by the second certificate. In this case, there is nothing on the face of the certificate or the signature card of the previous account to indicate that its provisions were intended to control the funds represented by the certificate. That signature card refers specifically to the Wachovia account. It is not a sufficient separate instrument as contemplated by the statute to govern those funds after they were withdrawn and used to purchase the High Point Bank certificate. The funds represented by this certificate were not held as joint tenants with right of survivorship. Defendant Clodfelter’s next contention is that even if the funds were not held in a survivorship account, they belong to him since they were his before they were deposited. We see no merit to this contention. The certificate lists “H. H. Clodfelter or Mary B. Clodfelter” as depositors. Nothing else appearing, money deposited in the bank to the joint credit of two people is presumed to belong one-half to each. McAulliffe v. Wilson, 41 N.C. App. 117, 254 S.E.2d 547 (1979). Defendant Clodfelter seeks to rebut the presumption by claiming ownership of the funds. This theory of ownership is directly contrary to our holding in Heffner, supra, and we summarily reject it. We hold that the forecast of evidence in this case established that Mary Clodfelter’s estate was entitled to one-half of the proceeds of the High Point Bank certificate and that the estate was entitled to summary judgment on that issue. [395] The family settlement agreement is irrelevant to the disposition of this case. Defendant Clodfelter’s second assignment of error is accordingly overruled. Affirmed. Judges EAGLES and Lewis concur. Footnotes [1] Effective 1 July 1989, the General Assembly has provided for alternative methods of creating rights of survivorship in joint accounts. See N.C.G.S. § 53-146.1 (Banks). G.S. § 54B-129 and G.S. § 54-109.58, dealing with survivorship rights in savings and loans and credit union accounts, have also been substantially revised.