First Nat. Bank v. Lawrence

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 221.
• Parties: FIRST NAT. BANK OF BIRMINGHAM v. LAWRENCE.
• Court: Alabama Supreme Court

101 So. 663

212 Ala. 45

FIRST NAT. BANK OF BIRMINGHAM v. LAWRENCE.

6 Div. 221.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Mrs. C. M. Lawrence against the First National Bank, of Birmingham to recover money deposited. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, page 449, Acts 1911. Affirmed.

Cabaniss Johnston, Cocke & Cabaniss and Sumner E. Thomas, all of Birmingham, for appellant.

Andrew J. Thomas, of Birmingham, for appellee.

BOULDIN J.

The suit is to test the right of the surviving wife to withdraw funds in bank, carried on savings account in the joint name of husband and wife. The cause was tried on agreed statement of facts. Omitting formal parts, the agreed facts are:

"*** On July 22, 1913, an account was opened in the savings department of the defendant in the joint name of Mr and Mrs. C. M. Lawrence, and an initial deposit of $75 was made in said account, whereupon the defendant issued its passbook No. 34117, showing said account in the name of Mr and Mrs. C. M. Lawrence, with the following language stamped on said passbook: ' The funds deposited on this account are the joint property of the two parties in whose name the account is opened, and either is authorized, under any circumstances, to sign checks for the withdrawal of funds, in whole or in part.' (Italics supplied.) At the time said account was opened defendant bank obtained from Mr. C. M. Lawrence and Mrs. C. M. Lawrence signature cards bearing the true and correct signatures of each of the said Mr. C. M. Lawrence and Mrs. C. M. Lawrence, and thereafter said bank accepted deposits on said account from both Mr. C M. Lawrence and Mrs. C. M. Lawrence, and honored checks drawn against said account by either Mr. C. M. Lawrence or Mrs. C. M. Lawrence. Under the rules of the bank either party, on withdrawing funds from said account, was required to present the passbook, and withdrawals were so made by each of said parties from time to time upon the presentation of said passbook.

"On June 1, 1923, C. M. Lawrence, who was the husband of the plaintiff in this cause, died. There has been no administration on the estate of C. M. Lawrence. On June 30, 1923, plaintiff presented to defendant said passbook, and made demand in writing tat defendant pay to her the balance on deposit with defendant bank in said account, which said balance was on said date $976.78. Defendant refused to pay to plaintiff upon said demand on the ground that all or a portion of said fund on deposit with it was the property of C. M. Lawrence, and that it could pay the funds belonging to C. M. Lawrence only to the administrator of the estate of said C. M. Lawrence."

The right of survivorship was an incident of joint tenancy at common law. As between husband and wife a peculiar form of tenancy existed, known as tenancy by the entirety. It grew out of a legal recognition of the husband and wife as one. The right of survivorship obtained in this as in other forms of joint tenancy. In Alabama the right of survivorship between joint tenants was abolished by statute in the early history of the state. Code 1907, § 3419.

Statutes creating the separate estates of married women have followed. As a result of our statutory system joint owners of property real or personal, including husband and wife, holding by inheritance, grant, devise or gift, become tenants in common, each owning a moiety, which, upon death, passes under the statute of descents and distributions. There is no survivorship as an incident to such estate. This does not mean there may not be an express grant to two or more,...