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Herring v. Johnson

Court of Appeals of Texas, Fourteenth District, Houston
Mar 4, 2004
No. 14-03-00266-CV (Tex. App. Mar. 4, 2004)

Opinion

No. 14-03-00266-CV.

Opinion of December 16, 2003.

Memorandum Opinion on Rehearing filed March 4, 2004.

On Appeal from the Probate Court No. 2, Harris County, Texas, Trial Court Cause No. 320,903-001 402.

Motion for Rehearing Granted; Withdrawn; Affirmed.

Panel consists of Justices YATES, HUDSON, and FOWLER.


MEMORANDUM OPINION ON REHEARING


We withdraw our opinion of December 16, 2003, and substitute the following opinion on rehearing.

Appellant, Colie Mae Herring ("Herring") appeals from the grant of final summary judgment ordering her to surrender the proceeds of a bank account to appellee, Glenn Johnson ("Johnson"), the administrator of her sister's estate. On appeal, Herring contends that the trial court erred in finding no right of survivorship was created in the joint bank account.

This appeal arises out a declaratory judgment suit brought by Johnson in his capacity as the administrator of Mrs. Helen Ida Pittman Huffman's estate. Mrs. Huffman died intestate on November 24, 2000, in Hattiesburg, Mississippi. Mrs. Huffman was predeceased by her husband and had no children. Herring was her only living sibling. At the time of her death, Mrs. Huffman owned several bank accounts. The declaratory judgment suit was brought to determine whether these accounts were joint accounts with rights of survivorship. All issues involving the disputed accounts were resolved by agreement and stipulation, except as to one account. The remaining account was an interest-bearing checking account at Bank of America, N.A., account number 4225501261 and styled "Helen Huffman or Colie Mae Herring." The account was opened by Mrs. Huffman in 1981. Sometime later, a new signature card was executed and Herring was added to the account.

The record reflects that Bank of America and NationsBank merged in 2000. NationsBank was previously known as NCNB, but after a merger with CNS Sovereign, it formed NationsBank. The signature card was signed while that bank was operating as NationsBank.

The legal effect of this signature card forms the basis of the dispute. Johnson filed a motion for summary judgment asserting that the signature card did not create a right of survivorship in favor of Herring. After an oral hearing, the trial court granted Johnson's motion and ordered Herring to return the proceeds of the disputed bank account to the estate.

The standard we follow in reviewing a summary judgment is well-established. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non-movant as true and we resolve any doubts in its favor. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984).

Johnson argued in his motion for summary judgment that the signature card purporting to grant Herring a right of survivorship in the account was insufficient as a matter of law. Johnson cited Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1990) in which the Texas Supreme Court explained that a right to survivorship could only be created by a written agreement that follows the section 439(a) of the Probate Code. In analyzing whether a right to survivorship was created, Stauffer established that courts could not consult any extrinsic evidence. Stauffer, 801 S.W.2d at 865. Accordingly, Johnson argued that the signature card, alone, was not in compliance with section 439(a); thus, no right of survivorship was created by the document.


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 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.' A survivorship will not be inferred from the mere fact that the account is a joint account.

TEX. PROB. CODE ANN. § 439(a) (Vernon 2003).

Herring directed the trial court to post- Stauffer amendments to the Probate Code in drafting her response to the motion for summary judgment. More specifically, Herring alleged in her response that the signature card was in compliance with both sections 439(a) and 439A. Herring correctly explained that the Texas Legislature had expanded the "`magic words'" requirement of 439(a) by enacting 439A. The amendments allow for the language creating the right to survivorship to be included in another account agreement or disclosure. Herring argued the requisite language was included in the Deposit Agreement and Disclosure given to Mrs. Huffman.

This section provides form language to establish particular types of accounts:

(4) MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP. The parties to the account own the account in proportion to the parties' net contributions to the account. The financial institution may pay any sum in the account to a party at any time. On the death of a party, the party's ownership of the account passes to the surviving parties.

TEX. PROB. CODE ANN. § 439A(b) (Vernon 2003). However, the financial institution may vary the format of the form and "make disclosures in the account agreement or in any other form which adequately discloses the information provided in this section." Id. § 439A(c). The institution may also employ the use of "a universal account form with options listed for selection and additional disclosures provided in the account agreement." Id. § 439A(d).

However, we find the requirements for establishing a right of survivorship as set out in the signature card were not met. The relevant portion of the signature card reads as follows.

Sign the blank(s) below if applicable

[X] Joint with Right of Survivorship __________

[ ] Payable on Death ("POD") _________________

[ ] Totten Trust account _____________________

The box adjacent to the right of survivorship language is checked; however, no signature or other marking appears on the line. Mrs. Huffman's and Herring's signatures appeared further down on the card under a section establishing the account as interest bearing.

There is no fact issue requiring reversal. Not only does the signature card require a signature to create a joint account with right of survivorship, but both Sections 439(a) and 439A require a signature or initials by the deceased party to create a right of survivorship. With no evidence of a signature or initials, we must affirm the grant of summary judgment.

A prerequisite to the creation of a right of survivorship is "a written agreement signed by the party who dies." TEX. PROB. CODE ANN. § 439(a) (Vernon 2003). "UNIFORM SINGLE-PARTY . . . ACCOUNT SELECTION FORM NOTICE: . . . . Select one of the following accounts by placing your initials next to the selection selected:" TEX. PROB. CODE ANN. § 439A(b) (Vernon 2003).

The judgment of the trial court is affirmed.


Summaries of

Herring v. Johnson

Court of Appeals of Texas, Fourteenth District, Houston
Mar 4, 2004
No. 14-03-00266-CV (Tex. App. Mar. 4, 2004)
Case details for

Herring v. Johnson

Case Details

Full title:COLIE MAE HERRING, Appellant v. GLENN JOHNSON, ADMINISTRATOR OF THE ESTATE…

Court:Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 4, 2004

Citations

No. 14-03-00266-CV (Tex. App. Mar. 4, 2004)

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