Bealert v. Mitchell

• Decision Date: 11 September 1979
• Citation: 585 S.W.2d 417
• Parties: Edward BEALERT, Administrator of the Estate of Allene S. Erd, Deceased, and Edward Bealert, Appellants, v. Roberta E. MITCHELL and First Federal Savings & Loan Association of Lexington, Appellees.
• Court: Kentucky Court of Appeals

585 S.W.2d 417

Edward BEALERT, Administrator of the Estate of Allene S. Erd, Deceased, and Edward Bealert, Appellants, v. Roberta E. MITCHELL and First Federal Savings & Loan Association of Lexington, Appellees.

Court of Appeals of Kentucky.

March 2, 1979.

Rehearing Denied May 4, 1979.

Discretionary Review Denied September 11, 1979.

Glen S. Bagby, Brock, Brock & Bagby, Lexington, for appellants.

Charles C. Calk, Joseph H. Miller, Gess, Mattingly, Saunier & Atchison, James C. Clay, Lexington, for appellees.

Before HOWARD, REYNOLDS and WINTERSHEIMER, JJ.

WINTERSHEIMER, Judge.

This appeal is from a judgment entered April 10, 1978, which determined ownership of five joint savings certificate accounts opened by Robert L. Erd and Allene S. Erd, husband and wife, between 1969 and 1974. The Erds were married for thirty-nine years and had no children of their marriage, but Mr. Erd had a daughter by an earlier marriage. That daughter is the appellee here. On April 10, 1975, Mr. Erd had Mrs. Erd's name removed from all joint savings accounts in their names. An officer of the savings association required Mr. Erd to present a general power of attorney and also execute an instruction document before she removed Mrs. Erd's name from the accounts. On August 14, 1975, Mr. Erd returned to the financial institution and requested that his name be removed from the same accounts and directed that they be placed in the name of his daughter by an earlier marriage, the appellee. On November 2, 1975, Mr. Erd died and on January 23, 1976, Mrs. Erd died intestate. Mr. Erd died testate and Mrs. Roberta E. Mitchell, the appellee here, qualified as executrix of his estate. On October 8, 1976, Mrs. Erd's nephew, Edward Bealert, was appointed administrator of her estate and on the same date filed the original complaint in this action. The trial judge decided that the certificates were not an asset of the estate of Allene S. Erd. This appeal followed.

Appellants set out the following issues:

1) The trial court committed reversible error in finding that the joint accounts were revocable gifts, each to the other.

2) The trial judge committed reversible error in holding that the right to withdraw gives the right to appropriate.

This Court affirms the judgment of the trial court.

The trial court did not commit reversible error in finding that the joint accounts were established by contracts which provided that the deposits were a revocable and conditional gift, each to the other. The signature cards applicable to each specific savings account indicate that the association must act pursuant to the directions of any one or more of the joint tenant's instructions and must pay without liability to any one or the survivor of them at any time. The provisions of KRS 289.391 provides for the same result. Any interest Mrs. Erd had in the accounts was terminated by her husband when he removed her name from the accounts. This action was tantamount to a withdrawal of the funds. The record indicates that the only reason Mr. Erd did not withdraw the money from the accounts was to avoid the loss of interest and a penalty charge. We believe it is obvious that the right to withdraw encompasses the right to delete the name of another on a...