Powell v. First Union National Bank

PHILLIPS, Judge. Plaintiff’s action seeking the release of funds held in a savings account titled in his name and that of the decedent, Casey Powell, Jr., his nephew, was dismissed by an order of summary judgment. [229] The only question presented by the appeal is whether the materials before the court raise an issue of fact as to the bank account involved being a joint savings account with the right of survivor-ship. We hold that no such issue is raised and affirm the order. G.S. 41-2.1, the only authority for creating a joint bank account with the right of survivorship, provides as follows: (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, 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. In substance, the materials of the parties show without contradiction that though plaintiff and Casey Powell, Jr. intended to establish a joint savings account with the right of survivorship, Casey Powell, Jr. died before signing the agreement. Since the statutory terms for creating a survivorship account were not complied with, plaintiff’s action has no basis. Nor is there any basis for plaintiffs contention that in any event he is entitled to half the funds since in opening the account he designated himself as a co-depositor and the law presumes equal ownership of such joint accounts. This presumption is rebuttable, however, and the materials of record show without contradiction that the funds deposited were entirely those of Casey Powell, Jr. McAulliffe v. Wilson, 41 N.C. App. 117, 254 S.E.2d 547 (1979). Plaintiff’s further argument that an issue of fact exists as to the ownership of certain items of personal property that he was ordered to turn over to defendant administratrix is likewise without basis. The only mention of those items in the pleadings is in the administratrix’s counterclaim — not responded to by plaintiff — in which she asserted that they belonged to her intestate. That fact having been adjudicated against plaintiff by his failure to plead to the counterclaim, his affidavit claiming ownership is irrelevant to the case. Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). Affirmed. Judges EAGLES and ORR concur.