Summary
holding that Vivian Malone's estate, of which Gary is independent executor, was entitled to funds in Vivian Malone's bank account after Vivian's death despite executed signature card that purportedly made Ann and Vivian joint holders of the account with right of survivorship
Summary of this case from Malone v. MaloneOpinion
No. 10-04-00011-CV
Memorandum Opinion delivered and filed June 1, 2005.
Appeal from the County Court at Law No. 1, Johnson County, Texas, Trial Court # P200217819.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Appellant Ann E. Malone appeals the grant of summary judgment in favor of Appellee Gary R. Malone as independent executor of the estate of Vivian J. Malone. In 1991, Vivian Malone and Appellant executed a signature card agreement on a bank account, which made them joint holders of the account. The card indicates that the nature of the accounts is "`OR' WITH RIGHT OF SURVIVORSHIP." After Vivian Malone's death in 2002, Appellee sought a declaratory judgment to the effect that funds in the account were the property of Vivian Malone's estate, and not property of Appellant. The trial court granted Appellee's motion for summary judgment and declared that the funds were the property of the estate.
In Appellant's first issue, Appellant contends that the trial court erred in granting summary judgment. We decide this case under the Texas Probate Code as it existed before the enactment of Section 439A in 1993. See TEX. PROB. CODE ANN. § 439A (Vernon 2003). Probate Code "Section 439A applies to instruments executed after August 30, 1993, the effective date of Section 439A, whereas instruments executed prior to that date remain subject to the language of Section 439(a)." Allen v. Wachtendorf, 962 S.W.2d 279, 283 (Tex.App.-Corpus Christi 1998, no pet.); see Tex. Prob. Code Ann. § 439(a) (Vernon 2003). We have decided a similar case under Section 439(a). See Shaw v. Shaw, 835 S.W.2d 232 (Tex.App.-Waco 1992, writ denied). Under Section 439(a), we cannot look to evidence outside the signed agreement. Stauffer v. Henderson, 801 S.W.2d 858, 863-64 (Tex. 1990); Shaw at 234. In Shaw, we held that the only evidence of a signed agreement, a bank signature card that used the language "Joint with Survivorship," was insufficient to create an ownership interest. Shaw at 235. Here, the only evidence of a signed agreement creating a right of survivorship is the words, "`or' with right of survivorship" in a signature card. Under Shaw, that language, too, is insufficient to create an ownership interest. We overrule Appellant's first issue.
In Appellant's second issue, she contends that the trial court erred in overruling her motion for continuance and motion for new trial. Appellant made the motion for continuance for the purpose of conducting further discovery to discover an unsigned bank account agreement, and made the motion for new trial after the bank located the agreement. Since we cannot look outside the signed signature card to the account agreement, the trial court did not err, or any error was harmless. We overrule Appellant's second issue.
Having overruled Appellant's issues, we affirm the judgment.