Appellants appeal from a judgment which held that four bank accounts passed outside the will of James Cecil Brown, deceased, as joint tenancies with right of sur-vivorship. In contention is whether the Probate Court erred in finding the accounts were joint tenancies with right of survivor-ship instead of finding the four bank accounts passed to Appellants through the residuary clause of the will. We affirm.
James Cecil Brown (Decedent) died in 1975 and left a typewritten will dated September 16, 1963. There is no dispute about the validity and due execution of his will. Garnett I. Birdwell, one of the Appellees in this appeal, applied for and received letters of administration on April 28, 1975. At a hearing on August 1, 1980, the Probate Court construed the will and held the will embodied a valid trust which excluded all joint accounts, savings and checking, held by Decedent in his name and others at the time of his death from the administration of Decedent’s estate and the deposited funds passed outside the terms of the will. At his death Decedent left six bank accounts, including:
Houston National Bank, Account No. 902856, styled “James Cecil Brown or Margaret S. Brown”;
Texas Commerce Bank, Account No. 293-7647, styled “J. C. Brown or Garnett Birdwell”;
First City National Bank, Account No. 01-3397-3, styled “J. C. Brown or Margaret S. Brown”;
Texas Commerce Bank, Account No. 8328320, styled “J. C. Brown or Garnett Birdwell”;
Texas Commerce Bank, Account No. 8635575, styled “J. C. Brown or Garnett Birdwell”; and
*663 Texas Commerce Bank, Account No. 8013948, styled “J. C. Brown or Garnett Birdwell”.
Appellants concede the first two accounts listed above passed outside the will, but contend the latter four accounts fail to meet the requirements for joint tenancies with right of survivorship and, as mere convenience accounts, pass through the residuary clause. The disposition of these latter four accounts is the subject of Appellants’ properly perfected appeal.
Appellants assert four points of error. In their first point of error, they argue the signature cards for the four accounts in dispute fail to establish rights of survivorship. Texas law does not favor joint tenancies with right of survivorship (JTWROS) in that they will not be found to exist by inference or presumption.
Ross v. Armstrong, 25
Tex. 355, 370-372 (1860); Tex.Prob.Code Ann. § 46 (Vernon 1980). Section 46 of the Probate Code provides, however, that parties may create a JTWROS by an agreement in writing. Tex.Prob.Code Ann. § 46 (Vernon 1980). Probate Code Section 439 provides further that where a party who later dies has signed a written agreement, sums in a joint account at the death of that party will pass to the surviving party rather than to the estate of the Decedent. Tex.Prob.Code Ann. § 439 (Vernon 1980). Here»the Decedent never married, therefore, none of the accounts represent community property requiring a formal statutory partition agreement mandated in case law and by our community property system. See, e.g.,
Williams v. McKnight,
“... to us, or either of us, or to the survivor of us, or to the executors, administrators or assigns of such survivor, ...”
The signature card for the account in Texas Commerce Bank, Account No. 8328320, styled “J. C. Brown or Garnett Birdwell” states the following:
“It is hereby declared by the undersigned that the funds now in this account or which may hereafter come into this account ... are to be paid ... to us or to either of us ... In the event of the death of either of us the funds shall be payable to the survivor, and in the event of the death of the survivor, the funds shall be payable to the administrator, executor, or legal successors of such surviv- or ...”
It is clear from the discussion of the authorities above that the quoted language sufficiently raises the presumption that Decedent intended to create a JTWROS interest in the two accounts above. Further evidence of Decedent’s intent to create JTWROS can be found in the express language of the will which directs “any funds presently or later in joint savings accounts or check accounts bearing my name as one of the persons, are hereby completely excluded from this will and its administration.” As to those accounts, therefore, Appellants’ first point of error must be overruled.
*664
It is also clear from the above authorities that Appellants’ second point of error which asserts that convenience accounts are presumed and the party claiming the contrary has the burden of proof states the law incorrectly. Where terms giving rise to a presumptive JTWROS are present, the party claiming the contrary, i.e., that a convenience account exists, has the burden to rebut the JTWROS presumption with clear and satisfactory evidence.
Alexander v. Bowens,
In their third and fourth points of error, Appellants contend the trial court’s holding the four accounts described above passed outside the will frustrates Decedent’s testamentary intent and ruins his dispositive scheme, and therefore, is erroneous. We have already found that accounts Numbers 8328320 and 01-3397-3 necessarily pass outside the administration of Decedent’s estate due to the presence of surviv-orship language and the JTWROS presumption Appellants have failed to rebut. The signature cards for Account Numbers 8635575 and 8013948 do not contain any of the language vital to giving rise to the rebuttable presumption that Decedent intended to create survivorship rights. It is, however, within the province of the Probate Court to determine the intent of a testator after examining the evidence and the plain language of the will as an entirety.
Gee v. Read,
We, therefore, affirm the judgment of the Probate Court.