Mary K. STAUFFER, Petitioner, v. J.D. HENDERSON, Respondent.
No. C-7480.
Supreme Court of Texas.
Dec. 31, 1990.
Rehearing Overruled Jan. 30, 1991.
801 S.W.2d 858
RAY and MAUZY, JJ., join in this dissent.
William L. Rivers, Austin, for petitioner.
Mitchell G. Ehrlich, Perryton, John M. Brown, Amarillo, for respondent.
OPINION
HECHT, Justice.
I
Marian K. Henderson opened a joint bank account with her sister, Mary K. Stauffer. All funds deposited to the account belonged to Marian. The only written agreement between Marian and Mary pertaining to the joint account was contained on the signature card provided by the depository and signed by both Marian and Mary. That agreement stated in pertinent part:
JOINT ACCOUNT-PAYABLE TO EITHER OR SURVIVOR
. . . We agree and declare that all funds now or hereafter deposited in this account are and shall be our joint property, that either of us shall have power to act in all matters relating to such account, whether the other be living or dead, and that upon the death of either of us any balance in said account or any part thereof may be withdrawn by, or upon the order of the survivor. It is especially agreed that withdrawal of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives. . . . [The depository] is hereby authorized to act without further inquiry in accordance with writings bearing any [signature of Marian or Mary], and any such payment or delivery or a receipt or acquittance signed by [Marian or Mary] shall be a valid and sufficient release and discharge of [the depository].
When Marian died, Mary withdrew the funds. Marian‘s husband, J.D. Henderson, the independent executor of her estate, then sued Mary to recover the funds, claiming that they were his and Marian‘s community property and that consequently half belonged to him individually and half belonged to Marian‘s estate. Mary answered, contending that she was entitled to the funds by right of survivorship created by her agreement with Marian contained in the signature card quoted above. J.D. and Mary both moved for partial summary judgment based entirely upon the language of the signature card. The trial court granted J.D.‘s motion, holding that Mary was not entitled to the funds. The trial court severed this judgment from the remaining issues in the case.1
II
A
Jus accrescendi, the right of survivorship, was the “grand incident” of a joint estate held, in the ancient language of the common law, “per my et per tout“. 2 W. BLACKSTONE, COMMENTARIES *183; C. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL
When two or more persons hold an estate, real, personal or mixed jointly, and one joint tenant dies before severance, his interest in said joint estate shall not survive to the remaining joint tenant or joint tenants, but shall descend to and be vested in the heirs or legal representatives of such deceased joint tenant, in the same manner as if his interest had been severed and ascertained.
Law of March 18, 1848, ch. 103, § 12, 1848 Tex.Gen.Laws 129, 132, 3 H. GAMMEL, LAWS OF TEXAS 129, 132 (1898).
Elimination of the right of survivorship as a necessary, legally imposed element of joint estates does not prohibit joint owners from agreeing that each will take the other‘s interest in the property at the other‘s death. Although the 1848 statute quoted above does not expressly allow joint owners to agree to a right of survivorship, it also does not prevent them “from providing among themselves that the property in question should pass to and vest in the survivor as at common law.” Chandler v. Kountze, 130 S.W.2d 327, 329 (Tex.Civ.App.-Galveston 1939, writ ref‘d); see Adams v. Jones, 258 S.W.2d 401 (Tex.Civ.App.-Austin 1953, no writ); Shroff v. Deaton, 220 S.W.2d 489 (Tex.Civ.App.-Texarkana 1949, no writ). The power of joint owners to agree to a right of survivorship, implicit in the 1848 statute, was made explicit when that statute was moved to section 46 of the new Probate Code adopted in 1955, and amended to provide as follows:
Where two or more persons hold an estate, real, personal, or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by agreement in writing of joint owners of property, the interest of any joint owner who dies may be made to survive to the surviving joint owner or joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.
Law of Sept. 1, 1956, ch. 55, § 46, 1955 Tex.Gen.Laws 88, 103. Although the language of section 46 has been amended several times since it was adopted in 1955, its essential provisions have continued in effect to the present.2
B
There has been little doubt before or after the adoption of
This confusion is due in part to the very different reasons parties have for opening joint accounts. It is not at all unusual for a person to deposit his or her funds into an account upon which another person is authorized to draw merely for the convenience of the depositor. The owner of the money intends only to facilitate disbursement of the funds for his or her own purposes, not to transfer title to the co-signator on the account. It is no less common for a depositor of funds into a joint account to intend that at some point in time, at the depositor‘s death if not before, those funds will become the property of the co-signator. Thus, both common experience, as well as the express language of
Frequently, the only written agreement of the parties which might reflect their intent is the signature card or similar form provided by the depository and signed when the account is opened. The principal purpose of such forms, however, is to authorize the depository to pay funds in the account upon the direction of any party,3 not to establish ownership of the funds as between the parties upon the death of one of them. See Reed v. Reed, 283 S.W.2d 311, 316 (Tex.Civ.App.-Dallas 1955, no writ). A joint account agreement which authorizes funds to be paid to or withdrawn by one party allows the party to insist that the depository honor a request for payment but does not establish the right of that party to the funds against other claimants. Thus, the account agreement provided by the depository and signed by the parties ordinarily authorizes delivery of the funds to any party to a joint account but may or may not settle the issue of actual ownership of the funds.
Construction of joint account agreements has been further complicated by uncertainty over the proper legal theory to be used to determine a survivor‘s right to account funds. A written agreement under
Thus, in Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962), the Court did not consider the language of the joint account receipt card provided by the bank and signed by the decedent to be dispositive of the survivor‘s right to the funds. The card stated only that the funds were “payable to the survivor of either” party and did not evince a clear intention to vest ownership of the funds, as opposed to mere possession, in the survivor. Nevertheless, the
By holding that contract language which did not create a right of survivorship might nevertheless give rise to a rebuttable presumption that one was intended, Krueger authorized consideration of evidence extrinsic to an agreement pertaining to the joint account, at least in instances when the agreement used the word “survivor“. See Quilter, 403 S.W.2d at 337-338. Absent some written reference to “survivor“, the Court held in Forehand v. Light, 452 S.W.2d 709 (Tex.1970), that no presumption was invoked and suggested that a right of survivorship could not be established, even by extrinsic evidence of intent. If, on the other hand, a right of survivorship was clearly created by the language of a joint account signature card signed by both parties, the Court held in Dulak v. Dulak, 513 S.W.2d 205 (Tex.1974), that the right could nevertheless be defeated by parol evidence of contrary intent. The courts of appeals after Krueger did not always draw these rather close distinctions, uniformly acknowledging simply that extrinsic evidence was admissible in every case on the issue of intent to create a right of survivorship. See William Marsh Rice University v. Birdwell, 624 S.W.2d 661 (Tex.App.-Houston [14th Dist.] 1981, no writ); Kennedy v. Beasley, 606 S.W.2d 1 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref‘d n.r.e.); Alexander v. Bowens, 595 S.W.2d 176 (Tex.Civ.App.-Tyler 1980, no writ); Griffin v. Robertson, 592 S.W.2d 31 (Tex.Civ.App.-Texarkana 1979); Cooper v. Durham, 565 S.W.2d 308 (Tex.Civ.App.-Eastland 1978, writ ref‘d n.r.e.); Worden v. Thornburg, 564 S.W.2d 480 (Tex.Civ.App.-Corpus Christi 1978, writ ref‘d n.r.e.); Henry v. Powers, 447 S.W.2d 738 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ); Estate of Reynolds v. Reynolds, 443 S.W.2d 601 (Tex.Civ.App.-Dallas 1969, writ ref‘d n.r.e.); Wallrath v. Calvert, 442 S.W.2d 884 (Tex.Civ.App.-Austin 1969), modified and affirmed, 457 S.W.2d 376 (Tex.1970); Turner v. Merchants & Planters Nat‘l Bank, 392 S.W.2d 889 (Tex.Civ.App.-Texarkana 1965, no writ); Groos Nat‘l Bank v. Norris, 384 S.W.2d 401 (Tex.Civ.App.-Eastland 1964, no writ). The results in these cases are difficult to reconcile and appear to have been heavily affected by the particular circumstances of each.
C
In 1979, the Legislature added to the Probate Code chapter XI entitled “Nontestamentary Transfers“. Included in this chapter is section 439, entitled “Right of Survivorship“.
Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent if, by written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party or parties. A survivorship agreement will not be inferred from the mere fact that the account is a joint account.
Law of Aug. 27, 1979, ch. 713, § 31, 1979 Tex.Gen.Laws 1740, 1758. Besides applying
First,
Second, the necessity of a written agreement signed by the decedent to create a right of survivorship in a joint account is emphatic.
Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.
UNIF.PROB.CODE § 6-104(a), 8 U.L.A. 562 (1983) (emphasis added.) “Clear and convincing evidence” is a standard used consistently in the provisions of article VI, part 1 of the Uniform Probate Code. See UNIF.PROB.CODE §§ 6-103(a), 6-103(c), 6-104(a), 6-104(c), 8 U.L.A. 520-533. In adopting these provisions into the Probate Code, the Legislature used this same standard in each, except for
These conclusions are consistent with the 1987 amendments to
Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states in substantially the following form: “On the death of one party to a joint account, all sums in the account on the date of the death vest in and belong to the surviving party as his or her separate property and estate.”
Not only has the Legislature made a written agreement both necessary and sufficient for a right of survivorship in a joint account, it has undertaken to specify language that will meet its requirements.5
D
The courts of appeals which have considered
The unequivocal phraseology of the language in the Code and the requirements of an agreement in writing by joint owners of an account including a certificate of deposit prevent a court from scrutinizing the circumstances surrounding the establishment of such multiple-party accounts and declaring the existence of a contract for the benefit of the third party or the intent of the decedent. In the absence of the mandated agreement in writing, the interest of a joint owner who dies before severance shall not survive to the remaining joint owner but shall descend to and is vested in his heirs or legal representatives.
Id. at 616. Again, in Chopin v. InterFirst Bank Dallas, 694 S.W.2d 79 (Tex.App.-Dallas 1985, writ ref‘d n.r.e.), the court held that absent an agreement creating a right of survivorship, none could be established by extrinsic evidence. After noting the enactment of chapter XI of the Probate Code, the court stated:
The Code provisions were adopted for the purpose, among others, of removing the confusion and uncertainty created by the then prevailing case law which had consistently held that parol evidence was admissible to determine the intention of the depositor in setting up a joint account. . . . The intent of the decedent must . . . be determined from the agreement, and extrinsic evidence may not be offered to prove intent. . . . Finally, by the terms of the agreement the account must be “made to survive” to the remaining party.
Id. at 84. Citing Chopin, the court in Dickerson v. Brooks, 727 S.W.2d 652 (Tex.App.-Houston [1st Dist.] 1987, writ ref‘d n.r.e.), upheld a right of survivorship created by the plain language of the account agreement, stating:
In order for an account to comply with the requirements of section 439(a), there must be a written agreement signed by the decedent, and the agreement must provide that upon the death of any party, the interest of the deceased survives to the other party. . . . Language to the effect that ‘the account is held as joint tenants with rights of survivorship’ is sufficient to create a valid survivorship agreement.
Id. at 653. See also McCarty v. First State Bank & Trust Co., 723 S.W.2d 792 (Tex.App.-Texarkana), rev‘d on other grounds, 730 S.W.2d 656 (Tex.1987) (per
In Sawyer v. Lancaster, 719 S.W.2d 346 (Tex.App.-Houston [1st Dist.] 1986, writ ref‘d n.r.e.), the court considered an account signature card which authorized payment to the surviving party but did not create a right of survivorship. The court observed: “Since the enactment of 439(a), every Texas case has held that evidence of the deceased person‘s intent is not admissible to alter a survivorship agreement.” Id. at 349. However, the court held, relying on Krueger, that
We agree with the courts of appeals which have held that
III
The account which Marian Henderson opened with Mary Stauffer is a joint account. The only written agreement pertaining to that account is the signature card, which is quoted above. That card authorizes payment of funds to the survivor at the other party‘s death but does not
RAY, Justice, dissenting.
I respectfully dissent. The court‘s holding construing
Legislative Intent for “Makes To Survive”
The majority opinion makes no reference to the legislative history of the 1979 amendments, as though the legislature gave no guidance on what the words of the statute mean. That is not the case. The legislative history states the 1979 amendments were to be a “codification of current law” to be enacted “without changing current Texas Law . . . both case law and statute.”1 The majority does not address this legislative history because it cannot reconcile this express legislative intent with the majority‘s conclusion that the statute “overruled” Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). Before addressing the legislative intent in detail, however, it is helpful to clarify what is not in issue in this case, because the majority opinion has muddled its analysis with irrelevant matters to avoid reaching the real issue.
First, the construction or application of
Second, whether Dulak is valid after the 1979 amendments, is not at issue here. Before the 1979 amendments, this court had recognized that a “convenience account” could be proved by extrinsic evidence contradicting the express terms of the written account card. When the terms of the writing clearly stated a joint account with right of survivorship was created, parol evidence was nevertheless admissible to show that the depositor intended that the account be for convenience purposes only, in which case the funds would pass to the decedent‘s heirs or devisees. Dulak v. Dulak, 513 S.W.2d 205, 208 (Tex.1974) (recognizing so-called “convenience accounts” contradicting the written account card). Whether the 1979 amendments overruled Dulak does not control this case. As adopted effective August 27, 1979 and applicable at all relevant times to this case, sections 439(a) and 441 of the Texas Probate Code provided:
§ 439(a):
Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent if, by a written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party or parties. A survivorship agreement shall not be inferred from the mere fact that the account is a joint account. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 438 of this code augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death, and the right of survivorship continues between the surviving parties if a written agreement signed by a party who dies so provides. (Emphasis supplied.)
§ 441:
Transfers resulting from the application of Section 439 of this code are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to the testamentary provisions of this code.
The legislature further added subsection (d), which provides in effect that joint accounts not meeting the written agreement standard and not falling within one of the other statutory exceptions3 are ineffective as non-probate transfers. Subsection (d) states:
In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.
It is a well-established principle of Texas law that when a statute is clear and unambiguous, and reasonably admits of only one construction, the courts will take the legislative intent from the words of the statute and apply that intent as written. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974). When the statute‘s meaning is plain, this court will not explore its legislative history to contradict its express terms. Railroad Commission v. Miller, 434 S.W.2d 670, 672 (Tex.1968); City of Port Arthur v. Tillman, 398 S.W.2d 750, 752 (Tex.1965). In subsection (a), the legislature provided that sums remaining on deposit are property of the survivor “if by a written agreement * * * [such interest] is made to survive to the surviving party” (emphasis supplied). In subsection (d) the legislature stated that in all other cases the interest passes as a probate asset. There is no ambiguity in this language as to the significance of a written agreement expressly and clearly granting survivorship rights. The statute plainly states that an unambiguous writing has controlling effect. When a written agreement‘s express words clearly and unambiguously provide that the sums in an account are to pass to the surviving joint tenant, i.e., that there are survivorship rights, the writing must be enforced. Notwithstanding the intent not to change Texas law, the legislature‘s express words have effectively overruled Dulak. There are no more “convenience accounts” when the writing clearly provides for survivorship rights. Parol evidence is no longer admissible to contradict the express terms of the writing. This court had already confirmed that result by refusing, “no reversible error,” several courts of appeals decisions4 reaching that conclusion, and presenting the issue for review by this court, while we were still an “error correcting” court.5
That the legislature intentionally or unintentionally has overruled Dulak does not mean that we should ignore legislative intent as shown by the legislative history to determine what language is sufficient under the “make to survive” words of the
The legislative intent was to leave Texas law on what “makes to survive” means unchanged, including case decisions under the common law. When the legislature enacted section 439(a) of the Probate Code, it was as part of a completely new chapter of the code. The House Judiciary Committee which drafted the statute issued an Interim Study Report. The Report states that in submitting the bill the Committee recommended that
codification of current law be made along the general structural lines of the Uniform Probate Code, Article 6, without changing current Texas Law and adopting the Uniform Probate Code provisions only where they do not conflict with Texas law-both case law and statute-or where Texas law is silent.
Interim Study Report on Nontestamentary Transfers presented to House Judiciary Committee: Recommendation #36, 66th Leg., Reg.Sess. (1979).
Similarly, the bill analysis on Chapter 10 of the Probate Code prepared for the legislature by the House Judiciary Committee recommended that by the proposed bill the Texas law of nontestamentary transfers should be codified in its present state along the structural lines set forth in the Uniform Probate Code, with no change in present Texas law, statutory or case law. There is no recorded debate or other legislative history to contradict these express statements of intent. Further, by using the terms “is made to survive to the surviving party or parties,” which was substantially the same as the terms “made to survive to the surviving joint owner or owners” appearing in
That language similar to the language at issue here, was sufficient to create the right of survivorship under
The signature card in the present case contained much more than the mere “payable to the survivor” language addressed in Krueger. The card furthermore provided that the funds were jointly owned and that withdrawals by the survivor were binding on the heirs, devisees, and personal representatives, and acted as an acquittal of the savings association. Although the card‘s language is susceptible to the construction that the release of the financial institution is what is binding on the heirs
Inconsistency with Prior Actions of the Court
There are two court of appeals opinions addressing the point at issue in this. They reach diametrically opposite conclusions and cannot be reconciled. Applications for writ of error in both cases were refused, no reversible error. In Chopin v. InterFirst Bank Dallas, N.A., 694 S.W.2d 79 (Tex.App.-Dallas 1985, writ ref‘d n.r.e.), the court held that under the new statutory provisions the payable to the survivor language was insufficient to create a presumption of survivorship rights. In Sawyer v. Lancaster, 719 S.W.2d 346 (Tex.App.-Houston [1st Dist.] 1986, writ ref‘d n.r.e.), the court reached the opposite conclusion. A review of our court‘s records shows that these actions can be reconciled only by the position advocated in this dissent.
It is elementary that under our former writ notation and practice, if the error in a court of appeals’ opinion was not preserved for our review on application for writ of error, the court would deny the application with the notation “refused, no reversible error.” In re Johnson, 569 S.W.2d 882, 883 (Tex.1978). When this court reviewed the decision in Chopin v. InterFirst Bank Dallas, N.A., 694 S.W.2d 79 (Tex.App.-Dallas 1985, writ ref‘d n.r.e.), the Chopin petitioners failed to argue and therefore failed to preserve the point that the account signature card language was sufficient under
Further, as the members of the court joining the majority opinion well know, the writ notations of all the cases discussed as “confusing” by the majority can be reconciled by applying the rule that the Krueger presumption still applies. In many cases the error was not preserved, so the “n.r.e.” notation was necessary. If extrinsic evidence was sought to be used to contradict the express terms of an unambigous writing creating survivorship rights, it was barred. But if “payable to the survivor” type language appeared, the presumption that survivorship rights applied unless extrinsic evidence showed a contrary intent.6
Elevating “Magic Words” Over Common Sense
The Krueger presumption was grounded on common sense to protect the decedent‘s probable real intention. The distinction between the right to withdraw the funds and have the action “binding on the heirs” of the decedent, but that “ownership” of the funds would not “vest” in the survivor who withdrew them, is too fine a legal line to expect an ordinary depositor signing a joint account card to make. Some commentators have suggested that the only safe language to use to create survivorship rights would be the “magic words” “A or B with right of survivorship” or “A or B as joint tenants with right of survivorship.” See, e.g., Warach and Wright, Money, Money, Who Gets the Money? Or Joint Bank Accounts With Right of Survivorship, 47 Tex.Bar J. 237, 241 (1984). Though legally unambiguous, it is not clear that the recommended “magic words” would mean more
It is ironic that the majority cites the dissent in Quilter v. Wendland, 403 S.W.2d 335 (Tex.1966), and Forehand v. Light, 452 S.W.2d 709 (Tex.1970), for the proposition that Krueger was somehow an inferior opinion limited to its facts. See majority opinion, ante, at 862 & n. 4. Both Quilter and Forehand support the application of the Krueger presumption to the facts of this case.
In Quilter, the issue was whether there was a third-party beneficiary contract. The dissent maintained that because the account agreement signed by the decedent had never been delivered to the financial institution, no contract had been created and therefore no third-party beneficiary status accrued to claimant. With respect to Krueger and quoting from Krueger, the dissent said:
However, in Krueger, there was the additional fact that a receipt card was delivered to the savings association, whereas in the present case the passbooks and signature cards were not delivered. In Krueger, this Court gave great weight to the language appearing on the receipt card. The Court said:
“However, the language appearing on this receipt card does serve to vest in Mrs. Krueger some present interest in and control over the certificate as well as the contractual right to possession of the proceeds as survivor.” [Emphasis added.]
I can understand the holding in Krueger because the “receipt card” upon which the Court relied was actually delivered to the savings association.
Quilter v. Wendland, 403 S.W.2d 335, 339 (Tex.1966) (Smith, J. dissenting).
Compare the quoted and emphasized language from the Quilter dissent (quoting from Krueger) with what the signature card signed by Mrs. Henderson stated in the present case. The language on the joint account signature card stated, in part, that “[w]e agree * * * that all funds * * * are and shall be our joint property * * * and that upon the death of either of us any balance in said account or any part thereof may be withdrawn by, or upon order of the survivor * * * [and] shall be binding upon us and upon our heirs * * * ” *.” It is clear that Krueger applies directly and that the dissenting justices in Quilter would have acknowledged such.
The issue in Forehand was whether mere words of joint ownership, stating that the certificates of deposit were payable to the order of “Mrs. J.B. Poindexter or Mary Light,” without more, created a right of survivorship. Likewise, the court‘s discussion of Krueger showed it clearly would apply to the facts presented by our present case:
We had a more difficult decision in Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962) because a “joint control card” which evidenced the agreement of the decedent with a bank concerning an investment share account provided that the certificate was payable to “W.T. Williams and/or Ila Mae Krueger or payable to the survivor of either.” Williams signed the card but Ila Mae Krueger did not. We held that the phrase “payable to the survivor” contained apt words to
raise a presumption of an intent to create survivorship rights even though the words fell short of the phrase “as joint tenants with the right of survivorship.” The word “survivor” was vital to our decision in Krueger.
Forehand v. Light, 452 S.W.2d 709, 710 (Tex.1970).
Krueger, Forehand, and their progeny are all cases that seek to use a common sense approach to presume what the layman depositor probably intended, but allow extrinsic evidence to rebut that presumption as with any ambiguous contract. Today the court takes a giant step backward to requiring “magic words” when the legislative intent and prior decisions of our court would not.7
This case is even more egregious, because Mrs. Henderson by her will left her residuary estate not to her husband but to her sister, the same Mary K. Stauffer against whom the court affirms the judgment. Recitations in her will show Mrs. Henderson‘s marriage to J.D. Henderson was not her first, and that all her children were born during prior marriages. One may speculate that Mrs. Henderson did not trust her husband and deposited the funds in the joint account (with the survivorship language) because for whatever reasons she felt more comfortable with her sister‘s sharing control and ownership of the account. Today the court denies to Mary Stauffer the presumption that survivorship was intended. But on the trial of the severed matters, Mr. Henderson will have the benefit of the presumption that the funds were community property to claim half of them, despite the apparent intent of his late wife (from both the joint account card and her will) that her sister have the funds. We should not eliminate a common sense presumption in order to work an injustice.
For these reasons, I respectfully dissent.
GONZALEZ, J., joins in this dissent.
Notes
If two or more persons hold an interest in property jointly, and one owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent‘s interest had been severed. The joint owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the surviving joint owner or owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.
The majority opinion‘s citation of Magee v. Westmoreland, 693 S.W.2d 612 (Tex.App.-San Antonio 1985, writ ref‘d n.r.e.), misses or obscures the point of the opinion. See majority opinion, at 864. In Magee, there was no account card or other writing signed by the decedent with the “payable to the survivor” language; rather, that language appeared in the certificate of deposit issued by the financial institution. Indeed, Finding of Fact No. 3 quoted in the court of appeals opinion was: “No written agreement was ever signed by Mary Louise Haag [decedent] stating the interest of Mary Louise Haag in Certificate of Deposit No. 14631 would on her death survive to Sam D. Magee.” 693 S.W.2d at 614. Further, the express holding was that there was no writing signed by the decedent. 693 S.W.2d at 616. The case does not hold that the language “payable to the survivor,” had such been signed by the decedent, would have been insufficient to create survivorship rights. Likewise, the majority‘s attempt to approve one holding of Otto v. Klement, 656 S.W.2d 678 (Tex.App.-Amarillo 1983, writ ref‘d n.r.e.), while questioning another holding (“unclear . . . whether it holding that there was a right of survivorship in the checking account was correct,” majority opinion ante, at 865 n. 6), results from a refusal to distinguish between contradicting an express survivorship agreement and accepting the holding that “payable to the survivor” was sufficient language (absent contradictory extrinsic evidence) to create survivorship rights.
The devisees under the decedent‘s will sued the bank to recover the funds it paid to the survivor on the account. The bank claimed against the survivor for indemnity. The trial court held that the survivor was entitled to the funds and therefore rendered judgment for the bank. The court of appeals reversed, holding that the devisees were entitled to the funds, but did not remand the case for further proceedings on the bank‘s claim of indemnity. This Court reversed the court of appeals’ judgment and remanded the bank‘s claim to the trial court. On the survivor‘s application for writ error challenging the appeals court‘s holding as to ownership of funds, however, this Court denied the application with the notation, no reversible error.
See supra notes 4 & 5 and accompanying text.Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states in substantially the following form: “On the death of one party to a joint account, all sums in the account on the date of death vest in and belong to the surviving party as his or her separate property and estate.”