Fast v. Gulley

155 S.E.2d 507 (1967)

271 N.C. 208

Helen Justice FAST v. Donald GULLEY, Executor under the Last Will and Testament of Oliver T. Justice, Deceased, and Mrs. Oliver T. Justice.

No. 521.

Supreme Court of North Carolina.

July 24, 1967.

*509 Mordecai, Mills & Parker, Raleigh, for defendant appellants.

Sanford & Cannon, by Charles G. Rose, III, Raleigh, for plaintiff appellee.

PARKER, Chief Justice.

Defendants have two assignments of error to the admission of evidence. The evidence was clearly admissible, and these assignments of error are overruled. Defendants' assignments of error to the findings of fact by Judge Braswell are overruled, for the simple reason that they are supported by competent evidence.

The agreement or contract between Helen J. Fast and her father Oliver T. Justice was entered into in the State of New Jersey, as shown by the finding of fact. In interpreting a contract made outside of this State our courts long ago established the principle that the law of the country where the contract is made is the rule by which the validity of it, its exposition, and consequences are to be determined. Watson v. Orr, 14 N.C. 161; Anderson v. Doak, 32 N.C. 295; Williams v. Carr, 80 N.C. 294; Hall v. Western Union Telegraph Co., 139 N.C. 369, 52 S.E. 50.

In Cannaday v. Atlantic Coast Line Railroad Co., 143 N.C. 439, 55 S.E. 836, 8 L.R. A.N.S., 939, Justice Connor, speaking for the Court, explained this principle at some length as follows:

"It is settled that `Matters bearing upon the execution, interpretation, and *510 validity of a contract are determined by the law of the place where it is made.' Scudder v. Union Nat. Bank, 91 U.S. 406, 23 L. Ed. 245. `The interpretation of a contract, and the rights and obligations under it of the parties thereto, are to be determined in accordance with the proper law of the contract. Prima facie the proper law of the contract is to be presumed to be the law of the country where it is made.' Dicey, Conf.Law, 563. Bowen, L. J., in Jacobs v. Credit Lyonnais, 12 Q.B. 589, says: `It is generally agreed that the law of the place where the contract is made is prima facie that which the parties intended, or ought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought, therefore, to prevail, in the absence of circumstances indicating a different intention.' 9 Cyc. 667."

Accord, Keesler v. Mutual Ben. Life Ins. Co., 177 N.C. 394, 99 S.E. 97 (1919); Bundy v. Commercial Credit Co., 200 N.C. 511, 515, 157 S.E. 860 (1931). A recent case, Roomy v. Allstate Ins. Co., 256 N.C. 318, at 322-323, 123 S.E.2d 817 (1962), reiterates the now well-established rule in North Carolina by citing Cannaday v. Atlantic Coast Line Railroad Co., supra, and quoting with approval the portion of Justice Connor's opinion set forth above.

Competent evidence in the record shows that the plaintiff Helen J. Fast and the testator Oliver T. Justice intended between themselves in New Jersey on 21 June 1951 that the 50 shares of Pittsburgh Plate Glass Company capital stock, Certificate No. NYO33877 and the 10 shares of United States Steel Corporation common stock, Certificate No. P706238 should be issued with the name of owner as follows: "Oliver T. Justice and Helen Justice Fast, as joint tenants with the right of survivorship and not as tenants in common," as shown by Judge Braswell's finding of fact. Both the testimony of Helen J. Fast and the deposition of Dora W. Vellenoweth show that New Jersey was the place where the last act of the parties was performed which resulted ultimately in the issuing of the stock certificates as above stated.

In Bundy v. Commercial Credit Co., supra, our Court said:

"Moreover, it is a generally accepted principle that `the test of the place of a contract is as to the place at which the last act was done by either of the parties essential to a meeting of minds. Until this act was done there was no contract, and upon its being done at a given place, the contract became existent at the place where the act was done. Until then there was no contract.' [Citing authority.]"

Appellants in their brief contend that there exists in this case an inter vivos gift which fails for lack of donative delivery, and rely upon Buffaloe v. Barnes, 226 N.C. 313, 38 S.E.2d 222. In our opinion, and we so hold, the principle of an inter vivos gift as discussed in Buffaloe v. Barnes, supra, is not here involved, but rather the question is: Is there a right of survivorship in a joint tenancy under the law of the State of New Jersey?

New Jersey Statutes Annotated, § 46:3-17, reads as follows:

"From and after February fourth, one thousand eight hundred and twelve, no estate shall be considered and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate that it was or is the intention of the parties to create an estate in joint tenancy and not an estate of tenancy in common, any law, usage, or decision theretofore made, to the contrary notwithstanding."

It clearly and affirmatively appears from Judge Braswell's findings of fact that it was the intention of plaintiff and her father to create a joint tenancy with the right of survivorship and not as tenants in common in respect to the 50 shares of Pittsburgh *511 Plate Glass Company capital stock and the 10 shares of the United States Steel Corporation common stock as set forth above. Such being the case, it is the law in the State of New Jersey, as we understand it, that Helen J. Fast and her father became in respect to this stock joint tenants, and hence with the right of survivorship for the reason that "[t]he incident of survivorship exists by implication in a joint tenancy." Burlington County Trust Co. v. Di Castelcicala, 2 N.J. 214, 66 A.2d 164, at 168.

Shearin v. Allen, 137 N.J.Eq. 276, 44 A.2d 210, at 211, involved the construction of a will with a devise and bequest by testator of all her property, real, personal, and mixed, which she may own or have the right to dispose of at the time of her death unto her sister and unto her brother "to have and to hold the same in equal shares as joint tenants and not as tenants in common." The Court in the unanimous opinion affirmed for the reasons expressed in the opinion of Vice-Chancellor Lewis, who said:

"The words `in equal shares' standing alone create a gift in severalty with all donees taking as tenants in common. But the will under consideration provides that donees should take `as joint tenants and not as tenants in common.' The donees under this will took as joint tenants with the right of vesting the whole interest in the survivor who does not die before the testator."

The court properly overruled defendants' motion for judgment of compulsory nonsuit. All defendants' assignments of error have been carefully considered and all are overruled.

We have received valuable help from the excellent brief of plaintiff's counsel in this case.

The judgment of Judge Braswell is

Affirmed.