Betty Bolding v. David Norsworthy, Executor of the Estate of Harold Deaton Norsworthy, Deceased
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DIVISION I
CA 07469
December 19, 2007
BETTY BOLDING
APPELLANT
APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
[NO. CV20062636]
V.
HONORABLE DAVID F. GUTHRIE,
CIRCUIT JUDGE
DAVID NORSWORTHY, Executor of the
EST AT E OF HAROLD DEATON
NORSWORTHY, DECEASED
APPELLEE
AFFIRMED
Appellant Betty Bolding appeals the trial court’s order awarding ownership of
approximately $50,000 in bank account funds to her late brother’s estate. Appellant
contends that the trial court erred in its determination that she was not entitled to the funds
as a joint owner with right of survivorship. We find no error in the trial court’s judgment
and affirm.
The dispute in this case concerns a savings account opened on April 6, 1987, in the
name of Harold Deaton Norsworthy, appellant’s brother. The signature card on the account
contained the signatures of both Harold Norsworthy and appellant. On February 15, 2006,
Harold Norsworthy passed away, and appellant withdrew all of the funds in the account,
approximately $50,000, and placed them in her own personal account. On June 19, 2006,
David Norsworthy, son of the decedent and executor of the decedent’s estate, filed a
complaint in Union County Circuit Court, arguing that appellant was not a joint owner of
the account and that the money in the account should be returned to the estate. Appellant
answered the complaint and alleged that she was the rightful owner of the money as the
account was held in joint tenancy with right of survivorship.
A bench trial on the matter was held on February 23, 2007. Rodney Landes, Jr.,
president of the bank at which the account was held, testified that it was possible to have
a single owner of an account but have several people sign on the account. Mr. Landes also
read the language of the signature card at issue, which stated in pertinent part:
A,
Mr. Harold D. Norsworthy
and B,
and C,
as joint tenants with right of survivorship, and not as tenants in common, and not
as tenants by the entirety, the undersigned hereby apply for a savings account in
First Federal Savings and Loan Association of El Dorado [now First Financial
Bank] and for the issuance of evidence thereof in their joint names, described as
aforesaid. You are directed to act pursuant to any one or more of the joint tenant
signatures shown below in any manner in connection with this account and without
limiting the generality of the foregoing to pay without any liability for such payment
to anyone or the survivor or survivors at any time. This account may be pledged in
whole or in part as security for a loan made by you to one or more of the
undersigned. Any such pledge shall not operate to sever or terminate either in whole
or in part the joint tenancy estate and relationship reflected in or established by this
contract. It is agreed by the signatory parties with each other and by the parties with
you that any funds placed in or added to the account by any one of the parties are
and shall be conclusively intended to be a gift and delivery at that time of such
funds to the other signatory party or parties to the extent of his or their pro rata
interest in the account.
***
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A. /s/ Harold Norsworthy
P.O. Drawer C
Smackover, AR 71762
B. /s/ Betty Bolding
C.
(Emphasis added.) As the card illustrates, there was only one name that was “aforesaid,”
but there were two names as the “undersigned.” Mr. Landes explained that his impression
was that Harold Norsworthy was the owner of the account and appellant was an authorized
signer, meaning she had the authority to write checks on the account.
Appellant testified that her brother added her name to the account in order to
compensate her for caring for him in his later years, and her brother had never told her that
she was to distribute the money to his children at his death. When questioned about the
creation of the account in 1987, appellant first asserted that she did not sign the signature
card at the bank and did not accompany her brother to the bank. But appellant later
admitted that she had testified in an earlier deposition that she had been cleaning her
brother’s house one day and “I found this thing that had my name and his on the bank
deposit – I mean, on the deposit slip, so he had me sign the paper at the bank, which he
didn’t tell me exactly what it was then.”
In a judgment filed March 23, 2007, the trial court gave credence to Mr. Landes’s
testimony that the bank recognizes a distinction between ownership of an account and
access to an account. The trial court concluded that the signature card that created the
account was ambiguous, as it makes reference to the “undersigned,” which would include
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CA 07469
appellant, and then makes a contradictory reference to the joint names as “aforesaid,”
which would refer only to the decedent. The court therefore considered other factors, such
as: (1) the social security number listed on the account was that of the decedent; (2) the
account was funded by the decedent; (3) appellant did not contribute to the account or pay
taxes on its interest earnings; (4) there is no other writing to indicate appellant’s ownership
of the funds or a gift to her through survivorship of the decedent. The court acknowledged
that appellant had the power to withdraw the funds in the account, but concluded “that
power does not equate to ownership of the funds.” The court found that ownership of the
funds rested with the estate and ordered appellant to remit the remaining funds to appellee.
Appellant then filed a timely notice of appeal to this court.
In bench trials, the standard of review on appeal is not whether there is substantial
evidence to support the findings of the circuit court, but whether the circuit court’s findings
were clearly erroneous or clearly against the preponderance of the evidence. Parker v.
BancorpSouth Bank, 369 Ark. 300, ___ S.W.3d ___ (2007). A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence
is left with a firm conviction that a mistake has been committed. Id. Disputed facts and
determinations of credibility are within the province of the factfinder. Simmons v. Dixon2
96 Ark. App. 260, ___ S.W.3d ___ (2006).
On appeal, appellant argues that the trial court erred because Ark. Code Ann. § 23
37502 (Repl. 2000) creates a conclusive presumption that opening a savings account in
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the name of two or more persons is evidence that both parties intended to vest title in the
account to the survivor upon the death of the other. Section 2337502 provides:
Savings accounts may be opened in any association or a federal association in the
names of two (2) or more persons … and the savings accounts may be held as
follows:
(1)(A) If the person opening the savings account fails to designate in writing the
type of account intended, or if he designates in writing to the association that the
account is to be a “joint tenancy” account or a “joint tenancy with right of
survivorship” account, or that the account shall be payable to the survivors of the
persons named in the account, then the account and all additions thereto shall be the
property of those persons as joint tenants with right of survivorship.
***
(C) The opening of the account in this form shall be conclusive evidence in any
action or proceeding to which either the association or the surviving parties is a
party, of the intention of all of the parties to the account to vest title to the account
and the additions thereto in the survivors.
Appellant argues that in this case, her signature and the decedent’s signature on the bottom
of the bank card is sufficient to satisfy the statute and create the presumption of right of
survivorship.
Appellant’s argument in this regard begs the question, however, of whether this
particular writing sufficiently designated the account as a joint tenancy with right of
survivorship. Appellant fails to address the trial court’s finding that the document was
ambiguous, and instead only argues that the trial court erred in conducting a “factual
inquiry” into the ownership of the funds. But our case law has made clear that where there
is uncertainty of meaning in a written instrument, an ambiguity is present, and parol
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CA 07469
evidence may be admitted to prove an independent, collateral fact about which the written
contract was silent. Alexander v. McEwen, 367 Ark. 241, ___ S.W.3d ___ (2006). We find
that the trial court’s finding of ambiguity and subsequent consideration of extraneous
evidence was not clearly erroneous.
Appellant also argues that there was not sufficient evidence presented to show that
the decedent intended the funds to pass to his estate and that the trial court improperly
imposed what amounts to a constructive trust without evidence to support such an action.
As to the sufficiency of the evidence, that argument has been addressed in the point above.
As to the imposition of a constructive trust, we agree with appellee that the argument is
without merit, as the trial court simply ordered the funds returned to the estate and made
no indication that it was creating a constructive trust. Overall, we find that the trial court’s
findings in this case were not clearly erroneous, and we accordingly affirm the judgment.
Affirmed.
GLOVER and BAKER, JJ., agree.
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CA 07469
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