South v. Smith

Ray SOUTH and Wilma South v. Berl A. SMITH,
Special Administrator of the Estate of Nancy
Walton

96-504                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996


1.   Joint tenancy -- withdrawal of funds -- effect. -- The
     withdrawal of funds from a joint account with right of
     survivorship before the death of the sole contributor does not
     destroy the survivorship right in the survivor.

2.   Joint tenancy -- appellant's ownership in proceeds from joint
     accounts continued -- joint tenant's ownership terminated at
     death. -- Where appellant was a joint tenant with right of
     survivorship in accounts and certificates of deposit, she had
     the right to withdraw money from the accounts and cash the
     certificates of deposit; her ownership in the proceeds from
     the joint accounts and certificates of deposit continued,
     while the deceased joint tenant's right of ownership in the
     funds from the accounts terminated at her death.

3.   Joint tenancy -- appellant's withdrawal of funds not
     conversion. -- The tort of conversion is committed when a
     party wrongfully commits a distinct act of dominion over the
     property of another that is inconsistent with the owner's
     rights; although the trial court ruled that appellant had
     wrongfully converted funds in joint accounts and joint
     certificates of deposit, she was a cotenant with ownership
     rights, and withdrawal of the funds was consistent with her
     ownership rights; her act of withdrawing the funds did not end
     her survivorship interest in the proceeds of the funds.

4.   Joint tenancy -- appellant did not acquire ownership to
     exclusion of joint tenant by withdrawing funds. -- Appellant
     did not acquire ownership to the exclusion of her joint tenant
     by withdrawing funds from a joint account.

5.   Joint tenancy -- statutory provisions concerning payment of
     funds to joint tenant do not determine ownership to exclusion
     of other joint tenants. -- Under Ark. Code Ann.  23-32-
     1005(1)(B) and (2)(B), funds in a joint-tenancy account can be
     paid to a joint tenant, but those provisions do not determine
     ownership to the exclusion of other joint tenants.

6.   Joint tenancy -- no dispute between living tenants --
     governing principle stated. -- Where there was no dispute
     between living joint tenants, the supreme court declared that
     the case on appeal was governed by the principle of Nall v.
     Duff, 305 Ark. 5, 805 S.W.2d 63 (1991), where the court stated
     that the withdrawal of funds by one joint tenant did not
     destroy her rights to those funds.

7.   Joint tenancy -- appellant's withdrawal of funds did not
     terminate her survivorship right in property -- joint accounts
     as substitutes for testamentary disposition. -- The fact that
     appellant exercised her right to withdraw funds from a joint
     accounts a few days before her joint tenant's death did not
     terminate her survivorship right in the property; the deceased
     joint tenant deliberately opened the accounts as joint
     accounts with the right of survivorship; joint accounts are
     often used as substitutes for testamentary disposition, and
     people who establish such accounts must be able to know with
     certainty that the courts will follow their desired
     disposition of their property.  

8.   Banks & banking -- creation of account is contract --
     construction and validity of contract governed by law of place
     where contract was made. -- The creation of an account in a
     financial institution is a contract, and absent some provision
     in the contract, the general rule is that the construction and
     validity of a contract are governed by the law of the place
     where the contract is made.

     Appeal from Craighead Chancery Court; Howard Templeton,
Chancellor; reversed on direct appeal; reversed on cross-appeal.
     Arlon L. Woodruff, for appellants/cross-appellees.
     Lyons, Emerson & Cone, by: Mike Cone, for appellee/cross-
appellant.

     Robert H. Dudley, Justice.
     This is another in a long series of cases involving joint
accounts in financial institutions.  Nancy E. Walton had three
children, Buel Walton, Lloyd Walton, and defendant-appellant Wilma
South.  Buel Walton died in 1982, leaving his daughters, plaintiffs
Rita Venable and Monda Hutchison, as his heirs.  After Buel
Walton's death, Nancy E. Walton opened joint bank accounts and
purchased joint certificates of deposit as a joint tenant with her
two remaining children, Lloyd A. Walton and Wilma South, in banks
and savings and loan associations in Arkansas and Texas, as
follows:
1. One certificate of deposit in the Southwest Savings,
now known as Guaranty Federal Bank, FSB, a savings
association located in Texas in the names of Nancy E.
Walton, Lloyd A. Walton, and Wilma South as joint tenants
with right of survivorship.
2. Six certificates of deposit in the MCNB Texas, now
known as NationsBank, located in Texas, in the names of
Nancy E. Walton or Lloyd A. Walton or Wilma D. South.
3. One certificate of deposit in Citizens Bank of
Jonesboro in the names of Nancy E. Walton or Lloyd Walton
or Wilma South as joint tenants with right of
survivorship.
4. One certificate of deposit, one savings account, and
one checking account in Home Federal Savings and Loan
Association, now known as Capital Bank, in the names of
Nancy E. Walton or Lloyd A. Walton or Wilma D. South as
joint tenants with right of survivorship. 
5. Two certificates of deposit in Pocahontas Federal
Savings and Loan Association in the name of Nancy E.
Walton or Lloyd A. Walton or Wilma D. South as joint
tenants with right of survivorship.
6. Two certificates of deposit in the First State Bank of
Arkansas in the names of Nancy E. Walton or Lloyd A.
Walton or Wilma D. South as joint tenants with right of
survivorship.
All of the accounts were opened with funds that belonged solely to
Nancy E. Walton.  
     Lloyd Walton died on October 24, 1992, leaving a daughter,
plaintiff Nancy Norwood as his heir.  After Lloyd Walton's death,
only Nancy E. Walton and defendant-appellant Wilma South remained
as the survivors on the various joint accounts.  Meanwhile, in July
1992, Nancy E. Walton had suffered a stroke and was moved to a
nursing home.  Appellant Wilma South cared for her mother and wrote
checks to pay her living expenses.  Between November 5, 1992, and
November 17, 1992, appellant Wilma South withdrew in excess of
$315,000 from the accounts and deposited the funds in new accounts
in her and her husband's names.  Her husband is defendant-
appellant, Ray South.  Their daughter's name was also placed on at
least one of the accounts.  Appellant Wilma South did not tell her
mother that she had removed the money from some of the joint
accounts or that she had deposited it in joint accounts with her
husband and daughter.  The only account from which no money was
withdrawn was a Home Federal account, but it was changed to reflect
Nancy E. Walton, Ray or Wilma South, and Karen Moustafa as joint
tenants with right of survivorship.  Nancy E. Walton died just days
after the money was withdrawn, on November 25, 1992.  In December
1992, after her mother's death, appellant Wilma South cashed a
$10,000 CD from NationsBank in Texas.  
     Monda Hutchison, Nancy Norwood, and Rita Venable, as the heirs
of Buel and Lloyd Walton, filed this suit and alleged that a
fiduciary relationship existed between Nancy E. Walton and
defendant-appellant Wilma South and that South breached that
relationship by withdrawing in excess of $300,000 from the accounts
to which Nancy E. Walton was the sole contributor.  They alleged
that appellants' actions constituted conversion and that a
constructive trust should be imposed declaring the money to belong
to the estate of Nancy E. Walton.  Appellants answered, denying
that they breached a fiduciary duty and asserting that the parties
had agreed that any one of them could withdraw the funds, and, if
one of them died, the funds would become the property of the
survivors.  The trial court appointed Berl Smith as special
administrator of the estate of Nancy E. Walton and substituted him
as the plaintiff in the action.  
     At trial, there was testimony by various employees of the
financial institutions that Nancy E. Walton understood the types of
accounts, knew how she wanted the accounts styled, and chose the
joint accounts with the right of survivorship.  The trial court
found that a fiduciary relationship existed between Nancy E. Walton
and Wilma South and that, while appellant Wilma South was
authorized to withdraw the funds from the accounts, she wrongfully
converted the funds by placing them in an account to the exclusion
of Nancy E. Walton.  The trial court determined that the death of
Nancy E. Walton did not terminate her cause of action.  The trial
court ruled that a constructive trust was created and that Wilma
South and Ray South held the proceeds for the benefit of Nancy E.
Walton's estate.  The trial court ordered Wilma South to pay to 
Nancy E. Walton's estate all of the proceeds withdrawn before Nancy
Walton's death and permitted Wilma South to retain the funds not
withdrawn until after her death.  The trial court also ordered that
"[p]laintiff's claim of $10,000.00 plus interest for the sum
withdrawn from Nationsbank in Texas on December 24, 1992 is denied
as Arkansas law applies to all accounts."   
     Wilma South and Ray South, on direct appeal, contend that the
trial court erred in that part of the order requiring them to repay
all of the funds withdrawn before the death of Nancy E. Walton, and
the special administrator appeals from that part of the order
providing that Arkansas law applies to the accounts opened in the
Texas financial institutions.  We reverse on both direct and cross-
appeal.
     We first address the direct appeal. The applicable statute,
Ark. Code Ann.  23-32-1005 (1987), in material part, provides:
Checking accounts and savings accounts may be opened and
certificates of deposit may be issued by any banking
institution, or federally or state-chartered savings and
loan association, in the names of two (2) or more
persons, either minor or adult, or a combination of minor
and adult.  Checking accounts, savings accounts, and
certificates of deposit shall be held and payable as
follows:
     (1)(A) Unless a written designation to the contrary
is made to the banking institution or federally or state-
chartered savings and loan association, when a deposit
has been made or a certificate of deposit purchased in
the names of two (2) or more persons and in form to be
paid to any of the persons so named, or the survivors of
them, the deposit or certificate of deposit and any
additions thereto made by any of the persons named in the
account shall become the property of those persons as
joint tenants with right of survivorship;
   (B) The deposit or certificate of deposit, together
with all interest thereon, shall be held for the
exclusive use of the persons so named and may be paid to
any of those persons or to the survivors after the death
of any of those persons.  The payment shall be a valid
and sufficient release and discharge of the bank or
federally or state-chartered savings and loan association
for all payments made on account of the deposit or
certificate of deposit;
     (2)(A) If the person opening the account or
purchasing the certificate of deposit designates in
writing to the banking institution or federally or state-
chartered savings and loan association that the account
or the certificate of deposit is to be held in joint
tenancy or in joint tenancy with the right of
survivorship, or that the account or certificate of
deposit shall be payable to the survivor or survivors of
the persons named in the account or certificate of
deposit, then the account or certificate of deposit and
all additions thereto shall be the property of those
persons as joint tenants with right of survivorship.
   (B) The account or certificate of deposit may be paid
to or on the order of any one (1) of those persons during
their lifetime unless a contrary written designation is
given to the banking institution or federally or state-
chartered savings and loan association, or to or on the
order of any one (1) of the survivors of them after the
death of any one (1) or more of them.
   (C) The opening of the account or the purchase of the
certificate of deposit in this form shall be conclusive
evidence in any action or proceeding to which either the
banking institution or federally or state-chartered
savings and loan association or the surviving party is a
party of the intention of all of the parties to the
account or certificate of deposit to vest title to the
account or certificate of deposit, and the additions
thereto, in such survivor.
                        . . . .
     (5) If an account is opened or a certificate of
deposit is purchased in the name of two (2) or more
persons, whether as joint tenants, tenants by the
entirety, tenants in common, or otherwise, a banking
institution or federally or state-chartered savings and
loan association shall pay withdrawal requests, accept
pledges of the account or certificate of deposit, and
otherwise deal in any manner with the account or
certificate of deposit.  This may be done upon the
direction of any one (1) of the persons named therein,
whether the other persons named in the account or
certificate of deposit are living or not, unless one (1)
of the persons named therein shall, by written
instructions delivered to the banking institution or
federally or state-chartered savings and loan
association, designate that the signature of more than
one (1) person shall be required to deal with the account
or certificate of deposit.
Ark. Code Ann.  23-32-1005(1) -- (2)(C) & (5) (1987) (emphasis
added).
     In Nall v. Duff, 305 Ark. 5, 805 S.W.2d 63 (1991), we
interpreted section 23-32-1005 to mean that the withdrawal of funds
from a joint account with right of survivorship before the death of
the sole contributor, as in the case at bar, did not destroy the
survivorship right in the survivor.  In that case, Nall cared for
her neighbor, Duff, for many years.  Duff opened a checking
account, and both Duff and Nall signed the signature card, which
provided, "Joint and Several Checking Account, Payable to Either or
Survivor."  305 Ark. at 6, 805 S.W.2d  at 63.  Duff also opened a
money market checking account, and both Duff and Nall signed the
signature card, which provided, "Joint Account--With Survivorship"
and "Such an account is issued in the name of two or more persons. 
Each of you intend that upon your death the balance in the account
... will belong to the survivor(s)." Id.  Duff later purchased a
certificate of deposit.  Both Duff and Nall signed the signature
card, which stated that it was a joint certificate and that the
signataries acknowledged that the depositor intended that the
account balance at the time of the death of any party to the
account would be the property of the surviving parties to take as
a surviving joint tenant.  Id.  Duff suffered a stroke and until
her death several months later was unable to speak or recognize her
visitors.  After Duff's stroke, but before her death, Nall withdrew
$83,383.44 from the joint accounts and cashed the certificate of
deposit for $23,192.53 and placed the money in a revocable living
trust in a bank in Missouri.  Nall was the grantor and trustee of
the trust and Duff was the life beneficiary.  The funds were for
the care and support of Duff during her lifetime, and those
remaining upon her death were to go to Nall as the grantor.  Nall
paid Duff's expenses from the account, as well as her attorney's
fees for drawing up the trust instrument and representing her in
the case.  The administrator of Duff's estate filed suit claiming
that Duff was incompetent at the time of establishing the accounts
and that Nall was in a fiduciary relationship with her; therefore,
the funds were in trust for Duff.  The trial court ordered Nall to
pay the total amount withdrawn to the estate, plus interest, minus
expenditures on behalf of Duff.  The trial court ruled that the
provisions of Ark. Code Ann.  23-32-1005 (1987) did not apply
because the benefits provided to Nall as a joint tenant terminated
when Nall withdrew the money and cashed the certificate of deposit.
     We reversed and held that the trial court erred in not
applying section 23-32-1005.  We quoted the introduction and
sections (1)(A), (1)(B), and (2)(A) -- (C), and stated:
          In Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990), we applied this section to determine
     the intent of the parties in establishing joint accounts
     with right of survivorship.  There, we said that Ark.
     Code Ann.  23-32-1005 (1987) applies to checking
     accounts, savings accounts, and certificates of deposit
     issued by a banking institution or a state-chartered
     savings and loan association.  We held that the language
     of Ark. Code Ann.  23-32-1005(2)(A) and (C), quoted
     above, is clear and provides conclusive evidence of the
     intention of the parties to create a joint tenancy with
     the right of survivorship when an account is opened in
     compliance with the provisions of these subsections. 
     Likewise, in the present case, we find the provisions of
     Ark. Code Ann.  23-32-1005(1)(B) and (2)(B), quoted
     above, are clear and establish the ownership rights of
     persons named in a joint account or certificate of
     deposit opened in compliance with the provisions of
     subsections (1)(A) or (2)(A).
          When Eva Duff opened the checking accounts and
     purchased the certificate of deposit in her and Kay's
     names, she designated in writing on the signature cards
     that the accounts were payable to the survivor.  This is
     in compliance with the provisions of Ark. Code Ann.  23-
     32-1005(1)(A) and (2)(A), under which the opening of an
     account or purchasing of a certificate of deposit in the
     name of two or more persons designating that the account
     or certificate of deposit shall be payable to the
     survivor of the persons named creates a joint tenancy
     with the right of survivorship.  Subsections (1)(B) and
     (2)(B) provide that the account or certificate of deposit
     may be paid to any one of the persons named on the
     account during their lifetimes, unless a written  
     designation is given to the contrary.  The accounts and
     certificates of deposit at issue here contained no
     contrary designation.  In fact, the signature cards for
     the money market checking account and the certificate of
     deposit specified that the funds on deposit could be paid
     to the persons named on the cards at any time and upon "a
     properly executed written order."  Thus, under the code,
     appellant had the right to withdraw the money from the
     accounts. 
Nall v. Duff, 305 Ark. at 9-10, 805 S.W.2d  at 65 (emphasis in the
original).
     Under Nall v. Duff, appellant Wilma South was a joint tenant
with right of survivorship in the accounts and certificates of
deposit.  As a joint tenant, she had the right to withdraw the
money from the accounts and cash the certificates of deposit.  Her
ownership in the proceeds from the joint accounts and certificates
of deposit continued, while Nancy E. Walton's right of ownership in
the funds from the accounts terminated at her death.
     In Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995), we
explained that the tort of conversion is committed when "a party
wrongfully commits a distinct act of dominion over the property of
another which is inconsistent with the owner's rights."  Id. at
262, 909 S.W.2d  at 305 (citation omitted).  In applying Nall v.
Duff and Dent v. Wright to the present case, the trial court ruled
that Wilma South wrongfully converted funds in the joint accounts
and the joint certificates of deposit.  However, she was a cotenant
with ownership rights, and withdrawal of the funds was consistent
with her ownership rights.  Her act of withdrawing the funds did
not end her survivorship interest in the proceeds of the funds.
     The trial court held that, even though one has a right to
withdraw funds from a joint bank account, a joint tenant may not,
by withdrawing funds in a joint tenancy, acquire ownership to the
exclusion of the other joint tenant, see Dent v. Wright, 322 Ark.
256, 262, 909 S.W.2d 302, 305 (1995), and that when one withdraws
in excess of his moiety, he is liable to the other joint tenant for
the excess withdrawn.  Id. at 263, 909 S.W.2d  at 305.  While that
is a correct statement of law, it is not applicable to the facts of
this case.  Here, Wilma South did not acquire ownership to the
exclusion of Nancy E. Walton by withdrawing the funds.  While she
did not place the funds in a trust, as was done in Nall v. Duff,
she testified that she would have used the money for her mother's
benefit and that the reason she did not so do was that her mother
died almost immediately after she withdrew the money.
     The trial court additionally relied on Hogan v. Hogan, 313
Ark. 374, 855 S.W.2d 905 (1993), in deciding this case.  In that
case the plaintiff-appellant was an elderly man who purchased a
certificate of deposit with his own funds in the name of himself
and his son and daughter, as joint tenants with the right of
survivorship.  The son redeemed the certificate of deposit for a
check payable to himself or his sister, the other joint tenant. 
The father filed an action asserting that the funds had been
converted and that he had placed the names of his children on the
certificate of deposit for purposes of survivorship rights at his
death.  The son and daughter moved for summary judgment on the
basis that a joint tenant can redeem a certificate of deposit for
the entire amount.  We held that under Ark. Code Ann.  23-32-
1005(1)(B) and (2)(B) funds in a joint tenancy account can be paid
to a joint tenant, but that those provisions "do not determine
ownership to the exclusion of other joint tenants."  Id. at 378,
855 S.W.2d  at 908.  We then quoted from  23-32-1005(2)(C) and
stated:
          This section recites that compliance with the
     statute will be conclusive evidence of the parties'
     intentions that the surviving party is entitled to the
     funds.  It does not say that compliance with the statute
     conclusively vests ownership of the proceeds of the
     account or CD in whoever happens to withdraw it.  The
     surviving parties in any given case would be those
     parties remaining after one or more joint tenants had
     died.  This section does not address the rights of a
     joint tenant who merely withdraws the funds, nor does it
     deal with the rights of joint tenants among themselves.
313 Ark. at 379, 855 S.W.2d  at 908 (emphasis in the original).  We
further stated there was nothing in the statutes governing the
rights of the joint tenants among themselves.  We discussed with
approval Savage v. McCain, 21 Ark. App. 50, 728 S.W.2d 203 (1987),
in which the court of appeals affirmed the imposition of a
constructive trust by the chancellor in a case in which one joint
tenant withdrew all of the funds in a joint account and refused to
account to the other joint tenant.  The court then stated that the
rule in other jurisdictions is that "though a joint tenant may
withdraw the entire fund, one who does withdraw funds in excess of
his moiety is liable to the other joint tenant for the excess so
withdrawn."  313 Ark. at 380, 855 S.W.2d  at 909 (citations
omitted).  In Hogan v. Hogan, we said that the trial court had
misinterpreted Nall v. Duff and stated that "Nall addressed whether
the withdrawal of funds by one joint tenant terminated any rights
she had to those funds.  We held it did not, and by way of support
pointed to  23-32-1005(1)(B) and (2)(B), which provide for payment
of the funds to any joint tenant who seeks to withdraw them."  Id.
(emphasis in the original). 
     Hogan v. Hogan is distinguishable from the case at bar in a
very important way: in Hogan v. Hogan, the dispute was between
living joint tenants, but, in the present case, appellant Wilma
South is the survivor of the joint tenants in all of the accounts. 
Here, there is no dispute between living joint tenants.  This
distinguishing factor places this case under the principle of Nall
v. Duff, where we stated that the withdrawal of funds by one joint
tenant did not destroy her rights to those funds. 
     The present case is not wholly in line with the facts of Nall
v. Duff in that appellant Wilma South did not place the funds
withdrawn from the accounts in a trust for Nancy E. Walton. 
However, Wilma South testified that the money that she withdrew was
to be used for her mother, but that she never used any of it for
that purpose since her mother died so soon after she withdrew the
money.  A constructive trust for the benefit of Nancy E. Walton
might well have imposed on the proceeds of the accounts during the
lifetime of Nancy E. Walton, but she died before this action was
filed and there was no showing that Wilma South deprived Nancy E.
Walton of anything she desired.  Upon Nancy E. Walton's death, her
rights in the joint funds go to the survivor in the joint account,
appellant Wilma South.  The fact that appellant Wilma South
exercised her right to withdraw funds from the joint accounts a few
days before Nancy Walton's death did not terminate her survivorship
right in the property.  Nancy E. Walton deliberately opened the
accounts as joint accounts with the right of survivorship.  Joint
accounts are often used as substitutes for testamentary
disposition, and people who establish such accounts must be able to
know with certainty that the courts will follow their desired
disposition of their property.  
     In the cross-appeal, the Nancy E. Walton estate contends that
the trial court erred in refusing to apply Texas law to the
accounts in Texas.  The argument is well taken.  The creation of an
account in a financial institution is a contract, and absent some
provision in the contract, the general rule is that the
construction and validity of a contract are governed by the law of
the place where the contract is made.  White v. Toney, 37 Ark. App.
36, 823 S.W.2d 921 (1992).  The court of appeals in White v. Toney
was not unmindful of the exception to the general rule that we set
out in Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 194 (1991). 
There, we held that Arkansas law, the law of the domicile of the
decedent, should be applied, as opposed to Texas law, where, just
as here, the account was opened.  But, as the court of appeals
noted, our choice of law in Morris v. Cullipher was based on the
fact that marital property was involved, and we held that there
should be a single basis for the ownership of marital property.   
     Reversed on direct appeal; reversed on cross-appeal.
     Jesson, C.J., concurring.
     Corbin, J., dissenting.

=================================================================

           Bradley D. Jesson, CHIEF JUSTICE, concurs.
     

     My concurrence concerns our decision on direct appeal.  I
agree that, under the particular circumstances of this case, we
should reverse and remand.  However, I am of the opinion that there
are other, similar circumstances in which our decision should not
be applicable.  In the case before us, Nancy Walton died without
having the opportunity to personally file suit or in any way assert
her right to co-ownership of the funds.  The first time her right
of ownership in the funds was asserted was after her death.  I
would limit our holding to that set of circumstances.  If Mrs.
Walton had discovered, prior to her death, the withdrawals made by
Wilma South, and had filed suit or, in some tangible manner, made
an attempt to recover the amount withdrawn by Wilma South in excess
of her moiety, then Mrs. Walton's cause of action should survive
her death.

=================================================================

         Donald L. Corbin, Associate Justice, dissents.
     I dissent because I am concerned with the path this court is
taking in reviewing cases involving joint-tenancy bank accounts
where one of the joint tenants is deceased.  What concerns me is
that our case law has now focused narrowly on the applicable
banking statute, Ark. Code Ann.  23-32-1005 (1987), without any
regard for the deceased's wishes outlined in a will as to how his
or her property shall be divided.  Such disregard is particularly
troubling in this case, where Nancy Walton died testate and her
will specifically devised and bequeathed all of her property in
three equal shares to the following persons:  (1) Lloyd Walton, her
(now deceased) son, (2) Appellant Wilma South, her daughter, and
(3) the children of her deceased son Buel Walton, namely Monda
Hutchison and Rita Venable.
     I have no doubt that the majority opinion correctly reflects
our previous decisions as well as the statutory law.  I write
because I am concerned that we are contributing to a false sense of
security for those persons who have enough foresight to document
their intentions as to the distribution of their property in a last
will and testament.  Those persons who follow legal advice and
encouragement and obtain a legally binding will no doubt believe
that when they die, their will shall be done.  It is unreasonable
for this court or the General Assembly to rob those persons of
their security and reliance upon their documented intentions simply
because part of their property lay in a bank account that they
share with a close friend or family member.  
     Many elderly persons, fearing that they may reach a point
where they can no longer care for themselves, establish joint bank
accounts with a child for the purpose of insuring that while they
are living, their affairs will be taken care of adequately.  Many
of those same persons will have prepared wills distributing their
property amongst all their family and would probably be shocked to
discover that after their deaths their wills were not even
considered by the courts in determining that the entire proceeds of
the joint bank account were awarded solely to the child whose name
appeared as joint tenant on the account signature card.   
     I am further troubled by the fact that in this case, Appellant
Wilma South withdrew the funds from the bank accounts while
Mrs. Walton was living.  Arguably, this court would have protected
Mrs. Walton's rights to the proceeds of the bank accounts while she
was living.  Why then does that protection not extend to her
estate?  The fact that Mrs. Walton died does not change the fact
that her daughter took what did not belong to her.  By its holding,
the majority appears to be sanctioning Appellant's actions in
depriving Mrs. Walton of the benefit of those funds during her
lifetime.  
     For all of the above reasons, I respectfully dissent.