Opinion
44573.
ARGUED JULY 7, 1969.
DECIDED SEPTEMBER 3, 1969. REHEARING DENIED SEPTEMBER 23, 1969.
Action for money had and received. Tift Superior Court. Before Judge Gray.
Franklin, Barham, Coleman, Elliott Blackburn, W. G. Elliott, for appellant.
Tillman, Brice, McTier Coleman, B. Lamar Tillman, for appellee.
Where a husband and wife make joint deposits in banks payable to one or the other, in which they agree that the banks are authorized to pay the balances to the survivor, in the absence of a contract between the husband and wife which expressly or by necessary implication creates a joint tenancy, upon the death of the husband the rights to the remaining deposits are in the wife and the estate of the husband as tenants in common, each being entitled to one-half of the deposits. There being no evidence to show such a contract of joint tenancy the court, trying the case without a jury, should have rendered a judgment to that effect instead of rendering a judgment declaring the wife to be entitled to all of the deposits involved in the case.
ARGUED JULY 7, 1969 — DECIDED SEPTEMBER 3, 1969 — REHEARING DENIED SEPTEMBER 23, 1969 — CERT. APPLIED FOR.
The plaintiff bank, as executor of Mr. John Speed Taylor's will, brought an action against his widow for money had and received, being deposits in five banks in various joint accounts in the name of Mr. or Mrs. Taylor, of which the defendant took possession after her husband's death. The defendant's answer set forth the defenses that the deposits were made from her funds as well as her husband's and that the deposits were solely her property, but that, even if that not be true, they were partnership funds of her husband and herself, of which the plaintiff could recover, if at all, only one-half of the sums actually received by defendant therefrom. The case was tried before a judge without a jury, upon a stipulation of facts and the testimony of Robbie Robinson, the president of the bank in which the largest sums were deposited, and the plaintiff's trust officer. The court entered judgment in favor of the defendant, from which the plaintiff appeals.
The court rendered the following judgment from which prefacing statements have been omitted: "The Court finds: (1) That prior to the making of any of the joint deposits at the Bank of Lenox, Mr. J. S. Taylor discussed with the president of that bank his business affairs and his will and his reasons for considering the making of the joint deposits, and thereupon the said bank president advised Mr. Taylor and represented to him that the effect of such a joint deposit was that the two depositors would own the deposited funds jointly during their joint lives and that the survivor of them would own the said funds upon the death of either; that Mr. Taylor thereupon expressed his intent to make joint deposits having that effect and, at his directions, the joint deposits were made with said bank in the names of `J. S. Taylor and Bennie Bell Taylor'; and that the said representations, upon which Mr. Taylor clearly relied, constituted a condition of, and a part of, the contracts of deposit; (2) That the signature card at the Bank of Tifton, which expressly provided that the deposited funds may be paid `to any one of the depositors or to any one of the survivors of them,' was applicable to the joint certificate of deposit issued by that bank to Mr. `or' Mrs. Taylor as well as to the joint pass book account of those depositors at that bank; and (3) That the joint deposits of Mr. `or' Mrs. Taylor at the Citizens Bank of Tifton, the United Bank Company, and the Farmers Bank of Tifton were made, or at least renewed, subsequent to the time when Mr. Taylor was advised by the president of the Bank of Lenox of the effect of such joint deposits, and it is clear that in making those deposits, or in renewing them, Mr. Taylor acted upon that advice and intended that such deposits be owned by Mr. and Mrs. Taylor jointly during their joint lives and be owned by the survivor upon the death of either of them.
"While joint tenancies with their incidental rights of survivorship are not favored by Georgia law and will never arise by mere operation of law, they are not prohibited, and where it clearly appears that such was the intent when a joint deposit is made in the names of a husband `or' wife, the deposit will be given the intended effect.
"In view of the above findings and all of the evidence in this case, the court concludes that all of the joint deposits involved in this case were owned by Mr. and Mrs. Taylor jointly and equally during their joint lives and that upon the death of Mr. Taylor all of those deposits were the sole property of Mrs. Taylor, the defendant.
"Accordingly, judgment is hereby rendered for the defendant, and it is adjudged that the plaintiff recover nothing in this action, and that the costs of this action be taxed against the plaintiff.
"So ordered, this 2nd day of April, 1969."
1. The answer to the principal question in this case depends on whether under the undisputed facts and stipulations there was created by Mr. and Mrs. Taylor a joint tenancy with respect to the moneys deposited in the several banks in the accounts of Mr. or Mrs. Taylor. The law covering the subject of joint tenancies is clear and we shall state it without belaboring the point. Joint tenancy, with its incident of survivorship, as it existed at common law, has been abolished in Georgia. Survivorship is not favored by the law of this State and never arises by operation of law. And even though the right of survivorship from a joint tenancy never arises by operation of law it is not prohibited, and a contract between the parties involved or their privies, which expressly or by necessary implication provides for it, may be enforced. Wilson v. Brown, 221 Ga. 273 (2) ( 144 S.E.2d 332) and cit.; Sams v. McDonald, 117 Ga. App. 336 ( 160 S.E.2d 594); Sams v. McDonald, 223 Ga. 53 ( 153 S.E.2d 538). There is no evidence whatever in this case which shows a contract, express or implied, in which Mr. and Mrs. Taylor created a joint tenancy in the bank accounts, etc., involved. There is evidence that Mr. Taylor, for his part, did so intend. This is not sufficient because Mr. Taylor could not in his individual capacity contract for his wife in a transaction to which she was not a party and to which she did not consent with a distinct understanding of the consequences of such consent. There is in evidence a signature card which Mr. and Mrs. Taylor signed upon making the joint deposits. Presumably all of the cards and passbooks contained the same matter. It reads: "This is a joint account of the parties signatory hereto. The bank may, upon presentation of the passbook, pay moneys from the account to any one of the depositors or to any one of the survivors of them and the receipt of such person on the passbook shall be a valid and sufficient release and discharge to the bank for any payment so made. Each of the parties signatory hereto appoints each of the others as his attorney with power to deposit in the joint account moneys or papers of any of the others and for that purpose to endorse any paper payable to any one of the others or to any of them jointly." It seems clear that this stipulation is a restatement of Code § 13-2039 which is designed to protect banks in the payment of deposits. Neither said Code section nor the above stipulation was designed to determine the ownership of funds on deposit as between the depositors and their privies.
In Wilson v. Brown, 221 Ga. 273, supra, the agreement between the depositors of the money clearly and distinctly created a joint tenancy. The agreements in this case had no such provision. If depositors would clearly provide for joint tenancies when that is what they intend, litigation over who owns deposits where the agreement protects only the banks and leaves open the question of who owns the balance on deposit after one depositor dies could be avoided.
It is not necessary to decide whether a witness was competent to testify, since conceding for argument only that he was competent, the testimony was totally without probative value as to any agreement, express or implied, on Mrs. Taylor's part, creating joint tenancies in the accounts involved. As between Mr. and Mrs. Taylor, the amounts deposited in the joint accounts became the property of the estate of Mr. Taylor and of Mrs. Taylor, share and share alike as tenants in common and the court erred in rendering judgment for Mrs. Taylor for the amount of all of the deposits when it should have rendered judgment in favor of each party for one-half of the deposits.
The judgment of the trial court is reversed in part with direction that a new judgment be entered in accordance with this opinion.
Judgment affirmed in part; reversed in part. Hall and Pannell, JJ., concur. Quillian, J., disqualified.