McEntire v. McEntire's Estate, 79-47

• Decision Date: 19 November 1979
• Docket Number: No. 79-47,79-47
• Parties: Vera McENTIRE, Appellant, v. ESTATE OF J. L. McENTIRE, Deceased, James C. McEntire, Executor, and Pine BluffNational Bank, Appellees.
• Court: Arkansas Supreme Court

Page 241

590 S.W.2d 241

267 Ark. 169

Vera McENTIRE, Appellant, v. ESTATE OF J. L. McENTIRE, Deceased, James C. McEntire, Executor, and Pine BluffNational Bank, Appellees.

No. 79-47.

Supreme Court of Arkansas.

Nov. 19, 1979.

Rehearing Denied Jan. 7, 1980.

C. Mac Norton, Pine Bluff, for appellant.

Jones & Petty, Pine Bluff, for appellees.

OTIS H. TURNER, Special Chief Justice.

Prior to December 18th, 1975, J. L. McEntire maintained a checking account in Pine Bluff National Bank in his individual name with sole authority in the owner to withdraw funds from the account. On December 18, 1975, a new signature card for the account was executed by McEntire and his wife, Vera E. McEntire, permitting either to withdraw funds from the account but retaining the account in the sole name of J. L. McEntire. Thereafter, both Mr. and Mrs. McEntire did, on occasion, withdraw funds from the account on their individual signature. On January 6, 1977, J. L. McEntire caused a new signature card to be issued in his sole name withdrawing the authority of Mrs. McEntire to draw funds from the account.

Both signature cards contained the following identical language:

"You are authorized to recognize either of the signatures subscribed below in the payment of funds or the transaction of any business for this account . . ."

"The below signed, joint depositors, hereby agree each with the other and with you that all sums now on deposit or herebefore or hereafter deposited by either or both of said joint depositors with you to their credit as such joint depositors with all accumulations thereon are and shall be owned by them jointly, with right of survivorship, and be subject to the check or receipt of either of them or the survivor of them and payment to or on the check of either or the survivor shall be valid and discharge you from liability."

"Each of the below signed appoints the other attorney, with power to deposit in said account monies of the other and for that purpose to endorse any check, draft, note or other instrument payable to the order of the other or both said joint depositors."

"Your rights or authority under this agreement shall not be changed or terminated by us or either of us except by written notice to you which shall not affect transactions therebefore made."

J. L. McEntire died subsequent to January 6, 1977. Vera McEntire brought this action against the Estate of her deceased husband and Pine Bluff National Bank to recover the funds on deposit in the account. Thereafter, both parties moved for summary judgment which was granted in favor of the estate and the Bank. From that Judgment, this appeal is taken.

For reversal, Appellant raises two broad issues. First, that appellant, rather than appellee, was entitled to summary judgment and second, that the Motion for Summary Judgment should not have been granted because there exist genuine issues of material fact.

Under point one, appellant urges that she is entitled to Summary Judgment because a tenancy by the entireties was created in the bank account on December 18, 1975, which could not be destroyed by the unilateral act of J. L. McEntire in removing the cotenants name from the account. Appellant further urges under point one that the Bank is estopped to deny appellant's absolute right to the balance in the account because checks executed by appellant and drawn on the account were honored by the bank subsequent to January 6, 1977.

Under point two, appellant makes no attempt to state what issues of material fact exist. However, the Complaint alleges (1) that a gift was made; (2) estoppel by the Bank and, (3) the creation of a tenancy by the entireties in the account.

We will first consider appellant's point two in that under the State of the record before us, we find that no genuine issue of material fact exists which would justify a reversal.

In order to establish a completed inter vivos gift, there must be clear and convincing evidence that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate, present and final gift beyond recall, accompanied with an unconditional release of all future dominion and control by the donor over the property delivered. Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W.2d 48; Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W.2d 218.

The affidavits of Vera McEntire and Aileen Ezell filed by appellant in support of her Motion for Summary Judgment clearly establish an intent other than to make an immediate, present and final gift beyond recall. To the contrary, Mrs. McEntire stated that "it (the account) was created in order that both of us could write checks on the account for whatever we needed, and my husband informed me that the balance would go to me upon his death". The affidavit of Ms. Ezell asserts that it was her understanding that the involved checking account was to be the property of Mrs. McEntire upon the death of Mr. McEntire.

The affidavits produced by appellant leave no issue of fact relating to inter vivos gift and the establishment of the account did not constitute a gift, as a matter of law.

The assertion that Pine Bluff National Bank is estopped by its conduct in honoring checks drawn against the account after January 6, 1977, is without merit. The uncontroverted facts in the record before us are that at the time the bank honored the checks, the authority of Mrs. McEntire to draw funds from the account had already been terminated.

Equitable estoppel is available only to one who has in good faith relied upon the conduct of another and has been led thereby to a change of position for the worse, acted to his injury, or gave up or abandoned a legal right upon the representations or conduct constituting the estoppel. Geren v. Caldarrera, 99 Ark. 260, 138 S.W. 335; Deal v. Deal, 220 Ark. 134, 246 S.W.2d 429; Thompson v. Wilhite, 131 Ark. 77, 198 S.W. 271.

Applying the facts of this case to the estoppel rule, it is immediately apparent that the appellant neither alleged or in fact changed her legal position or status because the checks were honored; she has not acted to her injury; and lastly, she gave up no legal right as a result thereof. Whether the checks drawn against the account after January 6, 1977 were paid or dishonored does not alter the legal status of the parties, the nature of the account at any given time, or the legal rights of Mr. or Mrs. McEntire relating to the account. What was done with regard to the account was done within the bounds of the laws of this State and was done Prior to the acts alleged to constitute an estoppel.

The Bank was acting within its authority in permitting the removal of appellant as one authorized to draw funds from the account. The involved account was held in such a manner that J. L. McEntire (or Mrs. McEntire) could withdraw or receive payments or withdraw All funds therefrom, and any such payments made by the banking institution would be a complete discharge as to the amount paid. Ark.Stats. Annotated, § 67-552(h). In addition, the Bank was under no legal duty to notify appellant that she could not longer withdraw funds from the account and no legal right of appellant was impaired or destroyed by the unauthorized payment of checks drawn on the account by appellant subsequent to January 6, 1977.

Appellant implies that a withdrawal of authority, or change of authority to draw upon the account should be distinguished from a withdrawal of the funds and establishment of a new account. We have previously established that there is no such valid distinction and it was thus unnecessary for Mr. McEntire to withdraw the funds and establish a new account as opposed to the course he followed in this instance. To require such would have been superfluous and equity regards substance rather than form. Davis v. Jackson,232 Ark. 953, 341 S.W.2d 762.

The remaining question under appellant's point two relates to the estate created between this husband and wife upon execution of the account signature card on December 18, 1975. The account, as it existed subsequent to December 18, 1975 and prior to January 6, 1977, was a tenancy by the entireties. Having previously disposed of the inter vivos gift and the estopped arguments, this leaves only the question of the rights of the parties under a tenancy by the entireties in a bank account those rights being the subject of established law.

There being no genuine issue of material fact remaining, summary judgment was a proper remedy in this case.

Turning then to appellant's point One urging that appellant, rather than appellee, should have been granted summary judgment on her motion, we consider the rights of tenants by the entireties in a bank account as those rights are governed by our established law and the facts in this case.

As early as 1921, this Court recognized that an estate by the entireties may be created in personal property. Union and Mercantile Trust Company v. Hudson, 147 Ark. 7, 227 S.W. 1. That holding has been consistently reaffirmed through the years, Black v. Black, 199 Ark. 609, 135 S.W.2d 837, and is now so well recognized that extensive citations are unnecessary.

In 1965, the General Assembly (Act 78 of 1965) established that bank accounts held in the names of persons who designate themselves as husband and wife shall be the property of such persons as tenants by the entireties and upon the death of one of the persons the account shall be payable to the survivor. The statute further provides that the banking institution shall pay withdrawal requests and otherwise deal in any manner with the account upon the direction of any one of the persons named therein. Ark.Stats. Annotated, Section 67-552. This was the Statute in existence at the time of creation of the account in question.

In Black, supra, we held that the Statute was passed for the protection of the bank in which the deposit was made. Though the Statute existing at the time of the Black decision...